text:
    Henry v. Wanamaker, Appellant.

      Negligence—Fences—Defective fence—Question for jury.

    1. The owner of the ground upon which a fence is maintained along a highway, or, if some other person is solely responsible for the maintenance of the fence, then that other person is not an insurer, but so far as the exercise of ordinary care will enable him to do so, he is bound to keep the fence in such condition that it will not fall and injure persons passing along the highway.
    2. If it is shown that the fence was very dilapidated, that its posts were rotten, and that it was rotten from the bottom, and that during a high wind it fell and injured a person passing by, the question of the negligence of the person responsible for the maintenance of the fence is for the jury.

      Negligence—Fence—Lease of fence for advertising purposes—Contract —Evidence—Independent contractor.

    3. In an action to recover damages for personal injuries caused by the fall of a fence, the defendant, the owner of the fence, cannot offer in evidence a written agreement between himself and an independent contractor whose negligence is alleged to have caused the accident, where it appears that the contract was executed three months after the accident, and there was no preliminary proof that what was embodied in the writing was the oral contract that existed between the parties at the time of the injury.
    4. Nor will the owner be permitted to offer in evidence an agreement between himself and a bill posting company by which he had leased the use of the fence for the display of advertisements, and by which the lessee agreed to keep the fence in good condition.
    5. While the parties, as between themselves, may determine which shall keep the fence in good condition, the owner cannot by such an agreement or lease relieve himself from responsibility to the public.
    Argued Oct. 20, 1910.
    Appeal, No. 133, Oct. T., 1910, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1900, No. 257, on verdict for plaintiff in case of Richard S. Henry, Jr., by his next friend and father, Richard S. Henry, v. John Wanamaker.
    Before Rice, P. J., Hendebson, Moebison, Oeladt, Head, Beaveb and Pobteb, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before WlLTBANK, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,000. Defendant appealed.

      Errors assigned were (1) refusal to admit in evidence the contract between the defendant and Owen Grinnan; (2) refusal to admit in evidence the paper termed a "lease” between defendant and the American Bill Posting Company; (5) refusal of binding instructions for defendant, and (6) refusal to enter judgment for defendant non obstante veredicto.

      W. W. Smithers, for appellant.
    The owner of walls or buildings is not liable unless negligence is proved: Cases reviewed in note, 34 L. R. A. 557; Joyce v. Black, 226 Pa. 408.
    Where the parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing not only to be the best, but their only, evidence of their agreement: Martin v. Berens, 67 Pa. 459; Union Storage Co. v. Speck, 194 Pa. 126; Wodock v. Robinson, 148 Pa. 503.
    Grinnan, under the paper, was an independent contractor in charge of the premises: Seitzinger v. Burnham, 223 Pa. 537; Beckman v. Ry. Co., 219 Pa. 26; Hunt v. R. R. Co., 51 Pa. 475; Harrison v. Collins, 86 Pa. 153; Edmundson v. R. R. Co., 111 Pa. 316; Eby v. Lebanon County, 166 Pa. 632.
    The bill posting lease should have been admitted and binding instructions for the defendant, based thereon, given: Pickering v. O’Brien, 23 Pa. Superior Ct. 125; Funk v. Haldeman, 53 Pa. 229; Baldwin v. Taylor, 166 Pa. 507; Watson v. O’Hern, 6 Watts, 362; Steel v. Frick, 56 Pa. 172.
    The bill posting company being in possession under a lease defendant was not liable: Bennet v. Bittle, 4 Rawle, 339; Bears v. Ambler, 9 Pa. 193; Lindstrom v. Penna. Co., 212 Pa. 391; Lonzer v. R. R. Co., 196 Pa. 610.

      Henry M. Stevenson, with him Maxwell Stevenson, for appellee.
    The owner of real estate lying along a public street or highway, is bound to keep it in such condition as to be safe to persons passing over the road, and is liable in damages for an injury resulting from a failure to perform this duty: Grier v. Sampson, 27 Pa. 183; Chester v. Bank, 9 Pa. Superior Ct. 517; Lindstrom v. Penna. Co., 212 Pa. 391; Brookville Boro. v. Arthurs, 152 Pa. 334.
    The court will construe agreements, which on their face appear to be leases, to be other than leases, when third parties are concerned: Woodward v. Leiby, 36 Pa. 437; Fisher v. Rush, 71 Pa. 40; Barclay v. Wainwright, 86 Pa. 191.
    March 3, 1911:
   Opinion by

Rice, P. J.,

Defendant owned a lot of ground at the corner of Washington avenue and Broad street in the city of Philadelphia, having a frontage of 150 feet on Washington avenue, along which was a board fence about twelve feet high, the boards being nailed on stringers and running up and down. In August, 1900, the plaintiff, then about nine years old, came down Broad street, on the sidewalk, and just as he turned the corner on to Washington avenue a high wind blew about thirty feet of the fence over on him, breaking his leg. At the time of the accident the lot was being excavated for the purpose of erecting buildings thereon. The excavation was from eighteen inches to two feet in depth and extended to about a foot from the fence line.

1. The allegation of the statement of claim is that the “fence was negligently, carelessly and insufficiently supported and braced,” and it is argued that proof that it was blown down by the wind would not, of itself, sustain the allegation, either prima facie or conclusively. We need not discuss this question, for there was other evidence tending to sustain the allegation. A witness who had opportunity and occasion to observe the condition of the fence before and after the accident testified: “It was a very rotten kind of fence. It had been up there for years. It was very dilapidated. . . . All the posts in the bottom, where the posts went in the ground, were rotten from the dirt, as posts get.” He testified that he saw the conditions in the afternoon after the accident, and, being asked whether from what he saw he could tell what caused the fence to fall, he said: “I could see that the fence did not take much trouble for it to fall, because it was rotten from the bottom. The posts all showed that. . . . The boards were rotten too.” In connection with this, the testimony as to the excavation must be borne in mind. The owner of the ground upon which such a structure is maintained, or, if some other person is solely responsible for its maintenance, then that other person, is not an insurer, but, so far as the exercise of ordinary care will enable him to do so, he is bound to keep it in such condition that it will not fall and injure persons passing along the highway. The principle was thus stated in Grogan v. Penna. R. R. Co., 213 Pa. 340: “On the principle, however, that no one can use or maintain his property in such a dangerous or unsafe condition as to endanger the life, limb or property of others, the defendant was under the duty of maintaining its fence strong and safe enough to resist such forces or conditions as should haye been foreseen by ordinary forecast.” The evidence above alluded to was sufficient, if believed, to sustain a finding that such care had not been exercised, and that the omission to exercise it was the proximate cause of the injury. Therefore, the question was for the jury and it was proper to submit the case to them, unless, under the evidence, the owner of the ground was not responsible for the maintenance of the structure. This is the remaining question to be considered.

2.. The gravamen of the plaintiff’s complaint is not that there was negligence in excavating too near the fence, but that, in view of all the conditions, including the proximity of the excavation, the fence was negligently, carelessly, and insufficiently supported and braced. This being so, it is not apparent that proof that the excavating was being done by an independent contractor would relieve the owner from responsibility. See Homan v. Stanley, 66 Pa. 464. But apart from this consideration, the court was right in rejecting the offer of the written contract between the defendant and Grinnan. As this contract was not executed until three months after the accident, it was incumbent on the defendant to show preliminarily that it was the mere embodiment in writing of the oral contract that existed between the parties at the time of the injury; in other words, that it embraced all the terms, and no others, of the oral contract. The testimony upon this subject, when viewed as a whole, did not meet this plain requirement, and for that reason, if for no other, the court was right in rejecting the offer. This ruling did not preclude proof of the oral contract, but simply excluded the writing as evidence of its terms. Under the evidence admitted, the rule as to nonresponsibility for the acts of an independent contractor did not apply to the case.

3. For the purpose of showing that he was not in possession and control of the fence at the time it fell, the defendant offered in evidence an agreement, under seal, between him and the American Bill Posting Company, dated November 1, 1897, whereby the defendant “let unto said lessee the following fences for advertising purposes described as follows subject to the terms and conditions hereinafter stated.” Here follows a description of several fences, and amongst them the following: “Northeast corner Broad and Washington avenue, containing sixty-six feet on east side of Broad street, and one hundred and fifty feet on north side of Washington avenue.” In a subsequent part of the instrument it is stated that “this lease is based upon the fact that sixteen hundred lineal feet is leased as advertising space.” This throws some light upon the nature and effect of the agreement as understood by the parties. The term mentioned in the instrument was one year, and the annual rental was $400, payable quarterly in advance. Amongst the terms and conditions were these: that the so-called lessee should, at its own expense, keep the fences in good condition and at the expiration of the agreement deliver up the same in good order and repair, ordinary wear and tear excepted; that in the event of any one being injured by the fences or billboards placed thereon, the lessee, and not this defendant, should be responsible for such injury; that the lessee would remove the billboards or fences upon thirty days’ notice, and cease posting bills upon one week’s notice without expense to the lessor, which notice could be served at any time; that should any of the conditions be not fully complied with by the lessee the lessor, upon ten days’ written notice, could cancel the agreement and prohibit the further use of the fences and boards by the lessee, without liability for any claim of any kind whatever on the part of the lessee; and that thereupon any attorney of any court in the county could appear for the lessee in an action of ejectment to be brought against him by the lessor, and confess judgment.

It cannot be disputed that the instrument contains many of the qualities of a lease. The contention that it gave the American Bill Posting Company other and higher rights than those of a mere licensee has support in the cases of Pickering v. O’Brien, 23 Pa. Superior Ct. 125; Oakford v. Nixon, 177 Pa. 76; and Oakford v. Nirdlinger, 196 Pa. 162. But if a lease, it was a lease of a peculiar kind, not differing, in essential particulars, from the lease of the roof and side wall of a building for the purpose of displaying advertisements thereon, such as was under consideration in the two cases last cited. It differs materially, however, from the lease under consideration in Pickering v. O’Brien, 23 Pa. Superior Ct. 125; for the structure was not a mere billboard, but was also a fence, and at the time of the accident was being maintained, presumably, for the benefit and protection of the defendant’s property, of which he was in the occupancy, as well as for the use and benefit of the bill posting company. It was competent for the parties to agree that as between themselves the duty of keeping - the fence in repair, as well as the responsibility for injury to third persons, resulting from omission to perform that duty, should devolve upon the bill posting company. But, as was said in Bears v. Ambler, 9 Pa. 193, so far as the public is concerned, it is nothing to them who may be ultimately liable for the repairs. Therefore, as between the defendant and third persons, this express agreement could not absolve him from the obligation that otherwise would have rested on him by reason of the maintenance of the structure for his purposes. Was there such obligation? The general rule is that where premises are in good repair at the time they are let, and the landlord is not bound by the lease to keep them in repair, the tenant in possession, and not the landlord, is liable for an injury resulting from failure to repair the pavement or fence in front of the premises: Lindstrom v. Penna. Company for Ins. on Lives, etc., 212 Pa. 391. But this rule is not without exceptions. "The tenant always is; the landlord may, under peculiar circumstances, be liable for an injury sustained by a third person arising from negligence: ” Bears v. Ambler, supra. Surely the owner of a building could not relieve himself from the duty, so far as the exercise of ordinary care would enable him to do so, to keep its walls in such condition that they will not fall and injure persons passing along the highway, by leasing them for the purpose of displaying advertisements on their surface. To extend the general rule above stated to such a case is not required by any authoritative precedent of which we are aware, and is not warranted by sound principle. If there is a difference between the case we have supposed and the one at bar, it is not such as to lead to a different result; it certainly is not such as to make the same rule applicable to the case, that might have been applicable if the defendant had leased the entire premises inclosed by the fence to the American Bill Posting Company. We conclude that the court committed no error in rejecting the offer of the lease.

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


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Smith v. Smith, Appellant.

      Interest—Usury—Promissory note—Bonus for ban.

    1. In an action on a promissory note given for a loan, where it appears from the body of the note and from the evidence that the borrower gave to the lender four atlases as a bonus for the loan, the borrower is entitled to show the money value of the atlases, and deduct such amount from the interest for which he was lawfully bound.

      2. In an action on a promissory note by a payee against the maker, where the defendant seeks to set off the value of certain work done for the plaintiff, and the plaintiff alleges that the work was done gratuitously, the defendant is not concluded by the fact that he had kept no book account showing the exact times when the services were rendered, and had sent no bills for them, and had not given notice that he was expecting to be paid for the services. Such facts, however, should be submitted to the jury with proper instructions as to their bearing upon the issue.
    Argued Oct. 20, 1910.
    Appeal, No. 137, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1909, No. 2,974, on verdict for plaintiff in case of J. L. Smith v. Elvino Y. Smith.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit on a promissory note. Before Kinsey, J.
    The note is quoted in the opinion of the Superior Court.
    At the trial the court refused under objection and exception to admit in evidence the market price of the four atlases mentioned in the note. [1]
    [Then we come to the question of the note and the atlases that were to be given to him in addition to the amount of the note with interest. He says, ‘ ‘ I will give you this money, but I want you to give me in addition as a favor to me, four of these atlases.” He gave them to him and he got them. So that item is out of this case, having been introduced here to bolster up the set-off. I say to you as a matter of law, that does not prevail against this note, if you find the principal of that note due.] [2]
    If you accept the plaintiff’s statement, then he is entitled to his full claim. You will consider also the matter that has been introduced in the affidavit of defense, wherein for the first time Mr. Smith, the plaintiff, says he had knowledge of it, which work the plaintiff assumed defendant was doing gratuitously, and kindly, according to Mr. Smith’s testimony; it did not amount to very much, anyway, in detail; he says the defendant was coming to his office, and had the run of the whole establishment, without any unfriendliness, until, finally, Mr. Smith, plaintiff, says, “I want this account settled; the money I loaned you has to be paid. Now, let us have a settlement.” Then comes the suit, and the affidavit of defense, wherein loom up all these answers. Are they honest and true answers? Were the services performed in the spirit in which Mr. Smith, plaintiff, says defendant performed them? If that is so, defendant is not entitled to be paid for such services. Or, on the other hand, will you accept defendant’s view of the matter? [Did plaintiff have the knowledge that he would have had if they had been dealing at arm’s length, such as by saying, “ I did this work for you,” or by the presentation of a bill or some claim being made to give him notice, which it was his right to have, for the reason that defendant could go on volunteering to do things and charge them up without knowledge upon the part of plaintiff, thereby plunging him into an indebtedness, and at the last moment come in and set such up as a defense.] [3]
    Verdict and judgment for plaintiff for $548. Defendant appealed.

      Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (2, 3) above instructions, quoting them.

      William E. Caveny, for appellant,
    cited as to usury: Campbell v. Sloan, 62 Pa. 481; Overholt v. Bank, 82 Pa. 490; Hartranft v. Uhlinger, 115 Pa. 270; Earnest v. Hoskins, 100 Pa. 551.

      Archbald T. Johnson, for appellee.
    March 3, 1911:
   Opinion by

Head, J.,

The plaintiff in this action seeks to recover, inter alia, ■the principal and interest due on a promissory note of which the following is a copy:

“Philadelphia, Aug. 27, 1907.

“Three months after date I promise to pay to J. L. Smith or order Three hundred & fifty dollars for money loaned, and will give him 4 Atlas 38 Ward (when published) for the loan.

“$350.00.

“(Signed) E. V. Smith.”

It thus appears from an inspection of the note itself that the defendant, in consideration of the loan, agreed to give to the plaintiff something more than the interest fixed by law as the compensation due to the plaintiff, to wit, four atlases. The plaintiff himself in his testimony admits that the atlases were delivered to him and that they were a bonus for the loan. The defendant testifies that when the plaintiff came to give him the money he said, “I am not in business for my health and I want you to give me 4 atlases of the 38th ward in return for this loan.” In his affidavit of defense the defendant had stated the proximate time of the delivery of these atlases, and as to this there was no denial.

The numerous decisions of our courts on contracts of this character leave no room for doubt as to the right of a debtor when sued upon such a contract. In Overholt v. Bank, 82 Pa. 490, Mr. Justice Sharswood said: “What the creditor is entitled to recover is the original loan with lawful interest, and the borrower is entitled to credit for all that he has paid beyond what by law he was bound to pay.” In Earnest v. Hoskins, 100 Pa. 551, Mr. Justice Turnkey said: “It is immaterial in what form or pretense the usurious interest is covered in the contract. . . . No contract, however framed, is good if the ultimate effect would be to secure more than the legal rate of interest.”

As against the plaintiff’s demand for the money he had loaned with lawful interest thereon, it was the right of the defendant to show the value of the bonus he had been compelled to give to secure the loan, and this value the law would regard as a payment pro tanto on account of the interest which the plaintiff could lawfully demand and receive. When the defendant undertook to prove the market value of the atlases he had given, the learned trial court sustained a general objection to the testimony and excluded it. In doing so we are of the opinion he fell into error and the first and second assignments must be sustained.

The defendant further sought to set off against the plaintiff’s claim the value of certain work done and services rendered by the defendant for him. The defendant testified that these services were rendered at the instance and request of the plaintiff and that the sums charged for such services were fair and reasonable. The plaintiff, not denying that at least some of the work charged for had been done by the defendant, alleged that the defendant did such work gratuitously and without any intention of charging for his services. This, of course, raised an issue of fact to be disposed of by the jury under proper instructions. The plaintiff’s theory was corroborated to some extent by the facts that the defendant had kept no book account showing the exact times when the services were rendered, and that although they covered a period of two or three years, no bills had been rendered and no demand for compensation made. If the jury should find from the evidence that the services claimed for by the defendant were actually rendered to the plaintiff, at his instance and request, and were of value to him, a recovery by the defendant would not be prevented merely because he had not presented bills during the course of the dealing or had not given notice that he was expecting to be paid for such services. In such a case it would be the duty of the learned trial judge to fairly submit these facts to the jury so that they might determine how far they strengthened the theory of the plaintiff or weakened the opposing contention of the defendant.

The third assignment of error complains that the charge of the court in this respect was of such a character that the jury might be misled to the conclusion that the defendant could not set off the value of such services because lie had given no notice of his intention to charge for them. It is possible that if this were the only error assigned we might hesitate to reverse the judgment because the language used by the learned trial judge does not necessarily lead to such a conclusion. As the case must go back, however, on the remaining assignments, we feel obliged to say that the appellant’s contention in this respect finds some warrant in the language of the learned trial judge, but this will doubtless be remedied upon another trial of the cause.

Judgment reversed and a venire facias de novo awarded.


author: Rice, P. J.,

text:
    Beck v. Germantown Cricket Club.

      Assignments—Unliquidated, damages in tort—Equitable plaintiffs— Costs—Appeals—Paper-books—Evidence.

    1. Unliquidated damages in tort are not capable of assignment before verdict.
    2. Where the plaintiff in an action of trespass to recover damages for personal injuries assigns a portion of the claim for unliquidated damages before verdict, and thereafter a verdict and judgment in his favor are reversed by the Supreme Court, the court has no power to make the assignees equitable plaintiffs at the instance of the defendant, for the purpose of enabling the defendant to proceed against the assignees for the costs of the suit.
    3. In such a case an appeal from an order making absolute a rule to make the assignees equitable plaintiffs will not be quashed because the appellants have failed to print the evidence taken at the trial. The rule applicable to such a case is rule 26, which provides that the evidence shall be printed “if necessary.” The evidence taken at the trial was not necessary to determine the question involved in the appeal.
    Argued Oct. 20, 1910.
    Appeal, No. 152, Oct. T., 1910, by Michael J. McEnery et al., from order of C. P. No. 2, Phila. Co., June T., 1906, No. 4,910, discharging rule to strike off appellants’ names as equitable plaintiffs in case of Alexander Beck and Mary Beck, his wife, v. Germantown Cricket Club.-
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Rule to show cause why the suggestion of appellants’ names as equitable plaintiffs and the entry of judgment against them for costs should not be struck off.
    The court discharged the rule.

      Error assigned was order discharging the rule.

      Edmund Randall, for appellants.
    It is clear that the Act of April 23, 1829, P. L. 355, gave the successful defendant in an action of tort no authority to make an assignee of an interest in a prospective verdict for unliquidated damages an equitable plaintiff, and so hold him for costs. Prior to and independently of the act of 1829 it was the practice of our courts to permit a successful defendant in an action of assumpsit to suggest of record the name of the equitable plaintiff and hold him for costs, but that was only in those cases where the person suggested was the real instigator of the action and prosecuted it for the exclusive benefit: Armstrong v. Lancaster, 5 Watts, 68; Canby v. Ridgway, 1 Binney, 496; Utt v. Long, 6 W. & S. 174.
    The assignment was a nullity, and afforded no authority for defendant’s action: Sensenig v. Penna. R. R. Co., 229 Pa. 168.

      Thomas Stokes and Bayard Henry, for appellee.
    The act of 1829 provides that the person at whose instance the action is prosecuted shall be liable for costs. Parties to a litigation, whether as attorneys or physicians, who accept an assignment of a claim, and take part in prosecuting the same, become liable for costs and are estopped from denying the validity of the assignment. They are persons at whose instance the case has been prosecuted: Armstrong v. Lancaster, 5 Watts, 68; Tomb’s App., 9 Pa. 61; Gallagher v. Milligan, 3 Penrose & Watts, 177; Miller v. Lint, 36 Pa. 447; Gambers to use v. Robinson, 1 Pearson, 67.
    March 3, 1911:
   Opinion by

Rice, P. J.,

The plaintiffs brought suit in trespass to recover damages for personal injuries to the wife alleged to have been caused by the defendant’s negligence. The case was tried three times. The third trial resulted in a verdict followed by a judgment in favor of the wife for $2,250 and in favor of the husband for $100. On appeal the Supreme Court reversed the judgment and entered judgment for the defendant. After the return of the record to the common pleas the defendant filed in that court a paper suggesting the names of these appellants as equitable plaintiffs in the case, which suggestion was accompanied by the affidavit of the secretary of the defendant association to the effect that Mary Beck, by an assignment dated November 15, 1909, assigned all her right, title and interest in the verdict to these persons. The purpose of this suggestion was to prepare the way for issuing execution against them, under sec. 2 of the Act of April 23, 1829, P. L. 355, for the costs amounting to $339.23. Upon their application the court granted a rule to show cause why the suggestion of their names as equitable plaintiffs and the entry df judgment against them for costs should not be struck off, and from the order discharging the rule this appeal was taken.

It appears from the depositions submitted on the hearing of the rule, that the assignment was agreed to, immediately reduced to writing and executed after the jury had retired to deliberate and before they rendered their verdict, and, although absolute in form, was given and accepted merely as collateral security .for the attorney fee of $500 theretofore agreed to be paid to one of the assignees for his services in the case, the bill of one of the other assignees, amounting to $100, for medical services, and the sum due Mary O’Hay, the other assignee, for money advanced and as compensation for taking care of the plaintiff for three years.

The legal question is, whether by taking the assignment under the circumstances stated the assignees became equitable plaintiffs and by that act alone made themselves liable for the costs. The act of 1829 is entitled, “A supplement to the act entitled, ‘An act for the assigning of bonds, specialties, and promissory notes.’” The Act of May 28, 1715, 1 Sm. L. 90, to which it is a supplement, relates exclusively to the assignment of “bonds, specialties and notes in writing,” and the first section of the act of 1829 relates exclusively to “cases of equitable transfer or assignments of judgments, bonds, specialties and other contracts.” The second section, which is supposed to support this proceeding, reads as follows: “That the equitable plaintiff or person for whose use or benefit and at whose instance any action has been or may be prosecuted, whether named on the record or not, shall be liable to execution on judgment, against the legal plaintiff or plaintiffs: provided, that where such equitable plaintiff or plaintiffs were not named on the record previous to judgment, his name shall be suggested on the record, supported by affidavit of his interest in the cause, before execution shall issue.” Construing this section in the light of the context and the subject-matter of the entire act, it would be a strained conclusion that would make it apply to assignments before verdict of unliquidated claims for damages in actions ex delicto. The reason for not extending the statute, by construction, to such a case is obvious, when it is remembered that such claims are not assignable before verdict. There are two recent cases directly on the point. In Marsh v. Western New York & Pennsylvania Ry. Co., 204 Pa. 229, it was held that the right of action given by the Act of April 26, 1855, P. L. 309, cannot be assigned by the widow to a child before verdict, so as to enable the action to be brought or maintained in the name of the widow for the use of the child. Justice Potter, speaking for the court, said: “The claim is at most, one for unliquidated damages, in an action sounding in tort, and is therefore under the authorities, not capable of assignment before verdict. A case in point is Rice v. Stone, 83 Mass. 566, where it is said that it is a principle of law, 'applicable to all assignments, that they are void, unless the assignor has either actually or potentially the thing which he attempts to assign. A man cannot grant or charge that which he has not.’ ” In Sensenig v. Penna. R. R. Co., 229 Pa. 168, it is said: ''A right of action strictly personal is not assignable and the general doctrine is, both in law and equity, that a right of action for a pure tort is not the subject of assignment: 2 Am. & Eng. Enc. of Law, 1020.” It is apparent, therefore, that the assignment gave these parties no rights, legal or equitable. It will be observed that the act requires that the interest of the person whose name is suggested as equitable plaintiff be set forth in the affidavit. It therefore plainly implies that the person must have an interest. But here, as we have seen, the persons whose names were suggested had no interest whatever. An application on their part to have their names entered as equitable plaintiffs would have been refused, if no other interest had been alleged as ground for the application than an assignment before verdict. It would be an anomaly to hold that one who is not an equitable plaintiff, and cannot be named as such on the record upon his own suggestion, may nevertheless be made an equitable plaintiff by the defendant. The assignment being treated as a nullity, as under the decisions it must be, and there being no other ground upon which the appellants could be declared to be equitable plaintiffs or persons for whose use or benefit the suit was prosecuted, it follows that the rule to show cause granted at their instance should have been made absolute. ■

The motion to quash, upon the ground that the evidence taken on the trial of the case is not printed in the appellants’ paper-book, cannot be sustained. This is not an appeal from a judgment on a verdict, but from an order which was made after judgment. The rule applicable to such a case is rule 26, which provides that the evidence shall be printed “if necessary.” The evidence given upon the trial of the case was not necessary in the determination of the question whether the interest which the appellants had by virtue of the assignment was such an interest as entitled the defendant to have them named as equitable plaintiffs. The motion is overruled.

The order discharging the rule to show cause why the suggestion of the names of Michael J. McEnry, W. M. Moore and Mary OTIay as equitable plaintiffs and the entry of judgment against them for costs should not be stricken off, is reversed and the rule is reinstated and made absolute; the costs of this appeal to be paid by the appellee.


author: Morrison, J.,

text:
    Philadelphia v. St. Elizabeth’s Church, Appellant.

      Taxation—Places of religious worship—Clergy house—Act of May 14, 1874, P- L. 158.

    A clergy house belonging to a church is not exempt from taxation, where it appears that the house was a three story dwelling house occupied by the rector of the church and his family; that it adjoined the church with a thirteen inch party wall between; that two doors opened from the house into the church, one in the basement and one on the first floor; that the door on the first floor was sometimes used for public entrance to the church although the church had a usual public entrance; that rooms on the ground floor of the house were used for the parish offices and vestry room for the conduct of the business of the parish; and that no revenue of income was derived from the house, except that its use as a residence by the rector and his assistant was a part of the compensation paid for their services to the church.
    Submitted Oct. 21, 1910.
    Appeal, No. 180, Oct. T., 1910, by defendants, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1909, No. 1,540, M. L. D. on case stated in suit of City of Philadelphia v. The Rector, Churchwardens and Vestrymen of St. Elizabeth’s Church of Philadelphia, owner.
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head, Beaver and Porter, JJ.
    Affirmed.
    Case stated to determine whether a clergy house was exempt from taxation.
    The facts are stated in the opinion of the Superior Court. The court in an opinion by Carr, J., entered judgment for plaintiff on the case stated.

      Error assigned was the judgment of the court.

      William D. Neilson, Clinton R. Woodruff and Clarence E. Kuemmerle, for appellants.
    The clergy house in this case is used for entirely different purposes than as a parsonage merely: Howell v. Philadelphia, 8 Phila. 280.
    The clergy house in this case is physically annexed to the church edifice proper and forms a part thereof: Church of Our Saviour v. Montgomery County, 10 W. N. C. 170; Pittsburg v. Third Presbyterian Church, 10 Pa. Superior Ct. 302; Northampton County v. St. Peter’s Church, 5 Pa. C. C. Rep. 416; Philadelphia v. Church of St. James, 134 Pa. 207; Moore v. Taylor, 147 Pa. 481; Wagner’s Est., 17 Pa. Dist. Rep. 530.

      Mayne R. Longstreth and James Alcorn, assistant city solicitor, and J. Howard Gendell, city solicitor, for appellee.
    That a parsonage or house for the pastor of a church is not exempt from taxation, because it is not an actual place of religious worship, nor ground necessary for the occupancy and enjoyment of such a place of worship has been decided by quite a line of decisions: Dauphin Co. v. St. Stephen’s Church, 3 Phila. 189; Mullen v. Erie Co., 85 Pa. 288; Church of Our Saviour v. Montg. Co., 10 W. N. C. 170; Wood v. Moore, 1 Chest. Co. Rep. 265; Mullen v. McKinney, 138 Pa. 69; Parsonage Taxes, 25 Pa. C. C. Rep. 570; Central M. E. Church’s Taxation, 11 Kulp, 131; Pittsburg v. Third Pres. Church, 10 Pa. Superior Ct. 302; Wood v. Moore, 1 Chest. Co. Rep. 265.
    The true basis of decision is the use and not the manner or character of annexation: Y. M. C. A. v. Donohugh, 13 Phila. 12; Wagner Inst. v. Phila., 132 Pa. 612; Mercantile Library Co. v. Phila., 161 Pa. 155; Amer. S. S. Union v. Phila., 161 Pa. 307; Montg. Co. Hist. Soc. v. County, 13 Montg. Co. Rep. 205; Sisters of St. Francis v. County, 7 Del. County Rep. 214; Mercantile Library Hall Co. v. Pittsburg, 11 Atl. Repr. 667.
    March 3, 1911:
   Opinion by

Morrison, J.,

The basis of this suit is a tax lien, and an amicable action was entered by agreement with the same force and effect as if a writ of scire facias sur claim had been issued and served and returned by the sheriff in accordance with the act of June 4, 1901. Preliminary notice waived. The facts are all stated in the form of a case stated for the judgment of the court below, each party reserving the right of appeal. The single assignment of error is: "The learned court erred in entering judgment on the case stated in favor of the plaintiff.” The following facts are taken from the case stated:

The defendant owns real estate in the twenty-sixth ward of the city of Philadelphia and on the northernmost portion of its lot is erected the church edifice, which is maintained and used as a regular place of public church worship; combined with and attached is the clergy house or rectory. The said clergy house occupies fifty-eight feet and six inches of the lot on Mifflin street and has a depth of thirty feet six inches to a wall thirteen inches in thickness, by which it is connected with that part of the church building which is devoted exclusively to public worship and with which communication is maintained by two doors, such as divide chambers or rooms, one in the basement and one in the first floor. The wall between the church edifice and the clergy house is said by the Philadelphia building inspectors to be of sufficient thickness and strength for an outside wall for either of the buildings. The door on the first floor frequently serves as a public entrance from Mifflin street to the wholly public part of the church, but the regular entrance to the church is immediately west of the rectory, or clergy house. The clergy house is three stories in height. On the lower floor are the parish offices where the business of the parish is conducted and where the governing body of the corporation meets to transact the business of the parish, the refectory or dining room, kitchen and pantry. On the next floor are the sitting room of the rector’s family, his study, a bath room and two bedchambers, and on the third floor another bath room and two more bedchambers. It is agreed that no revenue or income is derived from the said building, which is maintained by defendant as and for a residence for the rector of the parish and his assistant as part of the compensation paid for their services to the corporation. Further, the clergy house and lot upon which it was erected were assessed for taxation for the year 1908 at a valuation of $3,000 and the above lien is a claim for the same. Lastly, it is agreed in substance that if the court shall find that under the above statement of facts, the property so liened is exempt from taxation while used as above set forth, then judgment shall be entered in favor of the defendant. If, on the other hand, the court shall be of the opinion that the clergy house so situated and used is taxable, then judgment shall be entered in favor of the plaintiff in the sum of $54.31, with interest, penalty and costs. Each party reserving the right of appeal.

By a plot or plan attached to the case stated and agreed to be correct, it clearly appears that there is a complete church edifice erected upon the defendant’s lot and that it has a public entrance from a public street. At one side of the church is erected the clergy house upon which the taxes in question were assessed and levied. This house is a complete residence. It is three stories high and has the ordinary basement, rooms and conveniences of a modern house. It stands against one side of the church edifice but the two buildings are separated by a wall thirteen inches thick and admitted to be of sufficient strength for an outside wall for either of the buildings. The only connection between the clergy house and church is a door through said wall in the basement fixing a passageway from one basement to the other and a door on the first floor through the same wall.

The case stated concedes that the clergy house is occupied by the rector and his assistant as a part of the compensation paid for their services to the corporation. Therefore it seems clear that the defendant corporation does in a sense receive a direct benefit and income from the clergy house. The defendant’s counsel contend earnestly that the clergy house and lot on which it stands are exempt from taxation under the Act of May '14, 1874, P. L. 158, because it is combined with and attached to the church edifice, and communicates with it by means of the two doors above mentioned, one of which frequently serves as a public entrance to the wholly public part of the church, and contains the rector’s study and the parish offices where the business of the parish is conducted and where the governing body of the church meets to transact the business of the parish.

The difficulty with appellant’s contention is that the clergy house is not an actual place of religious worship. It is a residential place. The church adjoining is the place of religious worship. It is a strange use of language to say that a dwelling house, with basement, kitchen, dining room, bath rooms and sleeping rooms, actually occupied by a family as their residence, is an actual place of religious worship. In Mullen v. Commissioners of Erie Co., 85 Pa. 288, Chief Justice Agnew discusses the constitutional provision thus: "And not content with a single qualifying expression, it prefixed the word actual— ‘ an actual place of religious worship.’ Without religious worship held in it, the place has no character. The convention did not mean to exempt a place merely; for this would be unmeaning, without something to characterize the place. But when that body said, ‘An actual place of religious worship/ it expressed a general thought, which would embrace all kinds of buildings by simply defining the use, which was to be the ground of exemption. The debates in the convention- clearly indicate this meaning, and hence it was said this language would not include buildings put up for church purposes, as for Sunday schools, lectures, and parsonages'.” The learned judge then discusses the act of May 14, 1874, passed to carry out the exemption clause in the constitution, and he says: “Thus the title says, ‘places of religious worship’; and the text says, ‘ all churches, meeting-houses, or other regular places of stated worship.’ They must be places of stated worship. The word stated means fixed, established, occurring at regular times, as, stated hours of business. So, statedly means at certain times, not occasionally. But the legislature was not content with the word ‘stated,’ and the word ‘regular’ was prefixed, and the sentence became, ‘regular places of stated worship.’ It would be hard to find language that more clearly defines the use, which is the ground of the exemption.”

In Pittsburg v. Presbyterian Church, 20 Pa. Superior Ct. 362, we followed the doctrine of Mullen v. Commissioners of Erie County, 86 Pa. 288. In Philadelphia v. Barber, 160 Pa. 123, the same doctrine is adhered to (p. 128). Mr. Justice Mitchell, speaking for the court, said: “The exemption of church property under the act of 1874 being limited, therefore, to that in actual use and occupation, and the necessary construction being that such use and occupation must be exclusive as well as actual, and not the source of income or revenue, the exemption in the present case must be limited to such parts of the building as meet those requirements. If the church lot was large, and the church should erect a row of stores around its edge and rent them out, there could be no question that that part of its property would be taxable though the income should all be applied to the support of the church. It would not come within the intent and description of the statute.”

The above doctrine seems to apply with much force to the clergy house and lot in the present case. It is agreed that the corporation defendant partially pays the rector’s salary by granting him the use of the clergy house. In Moore v. Taylor, 147 Pa. 481, it was held as stated in the syllabus: “When a church building ceases to be used as 'an actual place of religious worship,’ its exemption from taxation ipso facto ceases, and the property forthwith becomes subject to taxation as full as though it had never been exempted.” In the present case we have seen that the clergy house, and the lot occupied by it, are not a necessary part of the church and that they never were used as an actual place of religious worship. No doubt the clergy house is a convenient adjunct of the church, but it is idle to contend that it' was a necessary part of the church edifice. From the description of the two buildings in the case stated it is apparent that either one could be removed leaving the thirteen inch division wall standing, and when the two doors mentioned were stopped up, the building remaining would be complete without the other one.

It has been many times decided that the question we are considering is controlled by the use and not the manner or character of the annexation. This principle has been carried to the extent that where a building is one single structure, and not a question of mere annexation, and one part of the building is used for an exempt purpose and another part for a nonexempt purpose, it is divided for purposes of taxation and one part exempted and the other part taxed: American Sunday School Union v. Phila. 161 Pa. 307. We followed that case in Pocono Pines Assembly v. Monroe County, 29 Pa. Superior Ct. 36. We might cite other cases but it is unnecessary to prolong this opinion.

We are all of the opinion that on the facts stated the learned court below did not err in entering judgment in favor of the plaintiff.

The assignment of error is dismissed, the judgment is affirmed, and the appeal dismissed at the cost of appellant.


author: Orlady, J.,

text:
    McCaughey v. American Ice Company, Appellant.
    (No. 1.)

      Negligence—Proximate and remote cause—Collision with wagon—Pedestrian.

    Where the driver of a heavy wagon makes a turn on a sloping roadway at such speed that his wagon sldds and strikes a milk wagon which in turn strikes a woman standing in a safe place on the pavement, the employer of the driver will be responsible in damages for the injuries sustained by the woman.
    Argued Oct. 21, 1910.
    Appeal, No. 170, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1908, No. 843, on verdict for plaintiff in case of Eliza McCaughey v. American Ice Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Carr, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict for Eliza McCaughey for $2,000 and for Hugh D. McCaughey for $1,000. Subsequently judgment was entered on the verdicts for $1,400 and $600, respectively, all above those amounts having been remitted. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      Frank R. Savidge, for appellant.

      J. Morris Yeakle, for appellees.
    March 3, 1911:
   Opinion by

Orlady, J.,

The proximate and sole cause of the plaintiff’s injuries, was the defendant’s heavy ice wagon violently striking a milk wagon, and forcing it against her with such force that she was thrown backward on the pavement on which she had been standing.

The only possible cause of this collision was the speed with which the driver of the ice wagon was making his turn on a sloping roadway. Had he been driving with less haste, his wagon would not have slipped or skidded, and the accident would not have happened. From his testimony, he was not unaccustomed to such incidents. When asked, “Why didn’t you come around easy and smooth if you knew the incline was there? ” replied, ‘ ‘ I had been driving that way before and I never had an accident before.” He admitted striking the milk wagon while he was going around the corner at a trot, and stated, “as a general rule when we strike a wagon the driver of the other wagon always calls you a name, and I turned around to see what he was going to say to me, and I happened to see the woman on the pavement.”

The plaintiff was standing in a proper place—on the pavement; the chain of events between the driver’s negligent act and the final result was a very short one, in fact but a moment of time intervened, and the occurrence was properly considered by the court and jury as a single incident, not complicated in any way with contributory negligence on her part, or with any intervention of any other agency.

The driver had a wide street before him, and his team was under his control. His haste was the sole cause of the trouble and his employer must stand responsible for that. It is not necessary to burden the opinion with citations of authorities in a case which is so manifestly free from error. The case was fairly tried and the proper verdict rendered.

' The judgment is affirmed.


text:
    McCaughey v. American Ice Company, Appellant.
    (No. 2.)
    March 3, 1911:
   Opinion by

Orlady, J.,

This case of the husband was tried before the same jury with that of the wife, Eliza McCaughey, against the same defendant, and separate appeals were taken by the defendant. For the reasons given in the case of Eliza McCaughey v. American Ice Co., ante, p. 370, the judgment in this one is affirmed.


text:
    Woodoleum Flooring Company v. Kayser, Appellant.

      Affidavit of defense—Supplemental affidavit—Practice, C. P.

    1. When two affidavits are filed in a case, they are to be construed as one affidavit, and must not be self-contradictory. If the supplemental affidavit contradicts the averments' of the original in matter essential to a valid defense, the court is warranted in holding that they are insufficient to prevent a judgment, but, where it is simply fuller and more specific than the original and the facts are not irreconcilable with the facts expressly averred in the original, or with the necessary inferences to be drawn therefrom, the two affidavits are to be treated as one and measured by the well-established tests.

      Affidavit of defense—Contract—Performance.

    2. In an action by a subcontractor against the contractor for the construction of a building, for the price of flooring furnished by the plaintiff, it appeared from the statement that the plaintiff was to lay the floor, and also guarantee that the material would not craze, crack or blister, and would make the same good for a period of five years. The affidavit of defense averred that the contract was made with the full knowledge of the contract and specifications, that the plaintiff guaranteed that the flooring should be done in accordance therewith, in a manner first class and satisfactory to the owner and the defendants, but that the floor was uneven and not level; that it was in a cracked, blistered, uneven and imperfect condition, and that the owner had refused to accept it because of its unsatisfactory condition, and that notice of this was given to the plaintiff during the progress of the work. Held, that the affidavit of defense was sufficient.
    Argued Oct. 21, 1910.
    Appeal, No. 155, Oct. T., 1910, by defendants, from order of C. P. No. 3, Phila. Co., March T., 1910, No. 1,541, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Woodoleum Flooring Company v. Samuel Kayser et al., Copartners, trading as Kayser & Allman.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit for work and material furnished.
    The opinion of the Superior Court states the case.

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

      Edmund W. Kirby, with him Robert J. Byron, for appellants.
    The defendants rest their case upon the principle firmly established in Pennsylvania, that where the plaintiff undertakes to do work, or furnish materials, or perform a contract to the satisfaction of the defendant, the defendant is the sole judge as to whether or not he is satisfied, and his statement of dissatisfaction discharges him from liability under the contract, except where his dissatisfaction is capricious, which question is one for the jury: Singerly v. Thayer, 108 Pa. 291; Seeley v. Welles, 120 Pa. 69; Howard v. Smedley, 140 Pa. 81; Delahunty Dyeing Machine Co. v. Knitting Mills, 19 Pa. Superior Ct. 501; Meyers v. Catawissa Coal Co., 219 Pa. 1; Payne v. Roberts, 214 Pa. 568.

      Thomas F. Gain, with him William Kelley, for appellee.
    —The affidavits were contradictory: York Engineering Co. v. Standard Heating & Engineering Co., 24 Lanc. L. R. 230; Port Kennedy Slag Works v. Krause, 5 Pa. Superior Ct. 622; Susquehanna Mut. Fire Ins. Co. v. Sprenkle, 13 York L. R. 121; Penrose v. Caldwell, 29 Pa. Superior Ct. 550.
    The affidavits were insufficient: Snyder v. Lingo, 30 Pa. Superior Ct. 651.
    March 3, 1911:
   Opinion by

Orlady, J.,

When two affidavits are filed in a case, the effect to be given to the second or supplemental one is to be determined by the rule announced by this court in Penrose v. Caldwell, 29 Pa. Superior Ct. 550. They are to be construed as one affidavit, and must not be self-contradictory. If the supplemental affidavit contradicts the averments of the original in matter essential to a valid defense, the court is warranted in holding that they are insufficient to prevent a judgment, but, where it is simply •fuller and more specific than the original and the facts are not irreconcilable with the facts expressly averred in the original, or with the necessary inferences to be drawn therefrom, the two affidavits are to be treated as one and measured by the well established tests.

The inception of this contract was in a verbal agreement between the parties, which was ratified by the plaintiff in a letter of August 11, 1909, in which it is stated “Confirming our verbal agreement on woodoleum floor for the Mercantile Club.” The plaintiff was to lay the floor and also guarantee that material will not craze, crack or blister and “we will stand ready to make the same good for a period of five years,” etc.

Of the material averments in the two affidavits, it appears that the contract was made with the full knowledge of the requirements of the contract and specifications entered into between the defendants and the mercantile club, and the plaintiff guaranteed that the flooring should be done in accordance therewith, in a manner first class and satisfactory to the mercantile club, and the defendants. The terms and conditions of the prior verbal agreement (mentioned ,in the letter of August 11) are not given in the statement, but it is distinctly averred in the supplemental affidavit that the floor was uneven and not level: that it was in a cracked, blistered, uneven and imperfect condition; that the club had refused to accept it because of its unsatisfactory condition, and that notice of this was given to the plaintiffs during the progress of the work.

While there are 3,000 feet more or less of flooring provided for, the whole was to be considered as a single undertaking and every part of it was to be completed in accordance with the specifications and to the satisfaction of the club: Singerly v. Thayer, 108 Pa. 291; Delahunty Dyeing Machine Co. v. Knitting Mills, 19 Pa. Superior Ct. 501.

We feel that the allegations in the statement were sufficiently denied' with reasonable certainty to constitute a substantial defense. The rule for judgment in such a case, is in the nature of a demurrer to the affidavit, and the material averments in it are to be taken as true and capable of proof, and their full legal effect is to be given them.

The judgment is reversed and a procedendo awarded.


text:
    Lehman, Appellant, v. Lancaster County Mutual Insurance Company.

      Insurance—Fire insurance—Husband and wife—“ Unconditional and sole ownership.”
    Where a policy of fire insurance containing the usual clause as to “unconditional and sole ownership” is issued to a husband on property described in the application as his, but in fact the property of his wife, the latter, after the property has been destroyed by fire, cannot maintain an action on the policy against the insurance company.
    Argued Nov. 14, 1910.
    Appeal, No. 26, Oct.. T., 1906, by plaintiff, from judgment of C. P. Lancaster Co., Dec. Term, 1908, No. 70, for defendant non obstante veredicto in case of Grace Lehman v. Lancaster County Mutual Insurance Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Landis, P. J.
    The opinion of the Superior Court states the case.
    At the trial the jury returned a verdict for plaintiff for $216.22. Subsequently the court entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant n. o. v.

      E. M. Gilbert, for appellant,
    cited: West Branch Lumberman’s Exchange v. Ins. Co., 183 Pa. 366; Hagan v. Ins. Co., 186 U. S. 423 (22 Sup. Ct. Repr. 862); Perry v. Ins. Co., 11 Fed. Repr. 482.

      Chas. W. Eaby, for appellee,
    cited: Chaney v. Ins. Co., 32 Pa. Superior Ct. 479; Schroedel v. Ins. Co., 158 Pa. 459; Rochester German Ins. Co. v. Schmidt, 162 Fed. Repr. 447 (89 C. C. A. 333); Diffenbaugh v. Ins. Co., 150 Pa. 270; Ætna Ins. Co. v. Resh, 40 Mich. 241; Duda v. Home Ins. Co., 20 Pa. Superior Ct. 244; Elliott v. Ins. Co., 20 Pa. Superior Ct. 359.
    March 3, 1911:
   Opinion by

Orlady, J.,

The plaintiff’s right to recover in this case is to be determined by the contract she made with the defendant. It was her duty clearly to inform the company in regard to her title to the property on which she sought insurance, and no duty rested on it to investigate the title she described in her application. If there was a misstatement made, or a fact concealed in regard to that important matter, the consequences must be borne by the one on whom the responsibility rested. The policy was written pursuant to the information she gave, and it is not suggested in this record that the company had any other knowledge in regard to the title, than that disclosed in the application, pursuant to which the policy was issued to her and her husband, while the title to the property in controversy in this case is described in the application as being “on his cigar box factory, 18x22 ft.—14 ft. to square shingle roof, $500.00 and contents, including gasoline engine, $300.00.”

It may or may not be, according to the circumstances, of no interest to the company to know what the rights of the assured are as between themselves, but in this case the ownership of the property is clearly defined by the statement that as to this particular property, it is the husband’s and not the plaintiff’s.

The parties provided that the company was not to be liable “beyond the interest of the assured in the property,” and declared in the body of the contract that it should be void “if the interest of the assured be other than the unconditional and sole ownership of the property herein described, on the land on which it stands, unless otherwise expressed in this policy.”

She undoubtedly had an insurable interest in this property, but she did not define it. She not only withheld her own name from this particular item, but declared it to be her husband’s, and the fact that they were husband and wife does not change the law of the case as they must be regarded as separate and distinct parties.

He does not claim anything for the loss and the property was not insured as hers, hence the unconditional and sole ownership clause in the policy was violated: Duda v. Home Ins. Co., 20 Pa. Superior Ct. 244; Diffenbaugh v. Insurance Co., 150 Pa. 270; Schroedel v. Insurance Co., 158 Pa. 459; Chaney v. Insurance Co., 32 Pa. Superior Ct. 479.

The judgment is affirmed.


author: Beaver, J.,

text:
    Smithgall v. American Union Telephone Company, Appellant.
    ' Negligence—Telephone companies—Master and servant—Lineman— Safety belt—Contributory negligence—Question for jury.

    In an action against a telephone company by one of its linemen, to recover damages for personal injuries, the question of the plaintiff's contributory negligence is for the jury where the evidence shows that the plaintiff, when he was about through with his work on a pole unloosed his safety belt from the pole just as the foreman on the ground below gave an order to other employees to pull the pole, and that in obeying the order a slip occurred by which the pole flew back and threw the plaintiff from the hold, which he had with his spurs, to the ground; and this conclusion is further strengthened by the fact that there was other evidence in the case to the effect that even if the plaintiff had had his belt hooked to the pole, he would have been thrown violently against the pole and injured.
    Argued Nov. 15, 1910.
    Appeal, No. 103, Oct. T., 1910, by defendant, from judgment of C. P. Lancaster Co., Nov. Term, 1908, No. 4, on verdict for plaintiff in case of Joseph Smithgall v. American Union Telephone Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Be- . fore Landis, P. J.
    At the trial the jury returned a verdict of $900 for plaintiff.
    On a motion by defendant for judgment n. o. v. Landis, P. J., stated the facts to be as follows:
    • The undisputed facts of the case show that the employees of the defendant company, of whom the plaintiff was one, were engaged in resetting a pole along defendant’s line, and plaintiff was directed to place a guy wire upon it. The pole was leaning toward the public road, and was about four feet out of line. In accordance with the orders of the foreman, plaintiff climbed it, and, having wrapped the wire twice around, put a clamp upon it; but, before he had finished, the men below were ordered to pull the pole up, and, as they did so, the end of the wire, which was made into what was called a cat’s claw or half hitch, gave way, the pole lurched back, and threw the plaintiff off into the road.
    It was admitted that linemen, engaged in work such as the plaintiff was then doing, are required to provide themselves with safety belts, and that the plaintiff had and used one on the day of the accident. This belt is fastened around the body, and the end, being passed around the pole, is hooked, and its purpose is to prevent the user from being thrown off the' pole. At the time the men pulled the pole, the plaintiff’s safety belt was unstrapped, and the facts relating to his use of it on that day can be briefly extracted from his testimony. He stated that he had clamped the bolt and was finishing the end of the guy wire when he heard the word "Pull.” He was then asked:
    “ Q. How long before you had finished your work had you unstrapped your safety belt? A. Just about the time I was unstrapping it, this order was given. Q. At the time the order was given, you were finishing the ends? A. Just about had finished and unhooked my safety belt. Q. You said, a minute ago, that, while you were finishing the ends, you heard the word 'Puli’ given. A. Yes, sir. Q. So that you hadn’t taken your hands off the wire, and were working with the ends, when you heard the word 'Puli’ given, didn’t you? A. That is what I said. Q. And, then, after you heard the word 'Puli’ given, you unstrapped your safety belt, didn’t you? A. They started to pull before-Q. Just answer my question. Didn’t you do that, after you heard the word 'Puli’ given, while you were working with the ends of the wire? Didn’t you. A. Yes, sir. Q. So that you knew an order had been given to pull, and, after that was given, you unstrapped your safety belt? A. Just unstrapped and came down. Q. You unstrapped it after you had heard the word 'Puli’ given? A. But I had no chance to get down. They pulled. Q. Won’t you just answer my question? Isn’t that the fact, that, while you were still working, finishing the ends, you heard the word 'Puli’ given? A. Yes, sir. Q. Now, you hadn’t unstrapped your safety belt while you were finishing the ends, had you? A. I had just unstrapped and ready to come down. Q. And you unstrapped it after you heard him say ' Pull ’? A. ‘ Pull,’ yes, sir, and he pulled me to the ground.
    The court overruled defendant’s motion n. o. v.

      Error assigned was the order of the court.

      William H. Keller, with him John A. Coyle, for appellant.
    Plaintiff was guilty of contributory negligence as a matter of law: Hart v. Light Co., 201 Pa. 234; The Maharajah, 1 C. C. A. 181 (49 Fed. Repr. 111); Roberts v. Tel. Co., 166 Mo. 370 (66 S. W. Repr. 155); St. Louis & S. F. Ry. Co. v. Bloyd, 60 Ark. 637 (31 S. W. Repr. 457); Junior v. Light & Power Co., 127 Mo. 79 (29 S. W. Repr. 988); Munn v. Wolff Mfg. Co., 94 Ill. App. 122; Dixon v. Light & Power Co., 47 La. Ann. 1147 (17 So. Repr. 696); Stack v. Patterson, 6 Phila. 225; Grabowski v. Steel Co., 2 Dauphin Co. Rep. 118; Martin v. Railway Co., 200 Pa. 603; Reed v. Electric Light & Power Co., 223 Pa. 591.

      C\ Eugene Montgomery, for appellee.
    March 3, 1911:
   Opinion by

Beaver, J.,

Two assignments of error raise practically the same question: Did the plaintiff present such a case as required the court to answer the defendant’s point ''Under the law and the evidence, the verdict must be in favor of the defendant,” affirmatively, and having failed to do so, was the defendant entitled to judgment, non obstante veredicto? The point was refused and the motion for judgment n. o. v. was discharged.

Did the plaintiff’s case, as presented, show him guilty of contributory negligence in such a way as to compel the court to declare, as a matter of law, that he was guilty?

In the discharge of his duties as an employee of the defendant company, the plaintiff .was necessarily compelled to ascend telephone poles after their erection and to work thereon in attaching guy ropes, as he was doing at the time of the accident, and for other purposes. In order to provide for his safety while doing this work, he was furnished with, and had in his possession and use at the time of the accident, spurs fastened to his legs which could be driven into the pole and afford support for his person while at work. In addition to this, he had what was called a safety belt which was also attached to the pole but did not bind him closely to it, but enabled him to swing clear of the pole, in order to have a sufficient distance between him and it to enable him to work in fastening the ends of the guy wires which he was engaged in attaching to the pole at the time of the accident. It seems to be assumed by the appellant that at or immediately before the accident the plaintiff had detached his safety belt from the pole and, when the attempt was made by the defendant’s other employees to straighten the pole, which was several feet from the perpendicular, by the application of rope and tackle, some slip occurred by which the pole flew back and threw the plaintiff from the hold which he had with his spurs and he was injured by the fall to the ground.

The appellant seems to assume that, if the safety belt had been attached to the pole at the time of the "pull,” as it is called, the accident would not have happened. This is probably true as to the particular form which the accident assumed, namely, the fall to the ground, but it may be doubted, in view of the character of the belt and its object, whether an accident equally serious, or more so, might not have occurred by bringing the plaintiff into quick and injurious contact with the pole, and it by no means follows that, if the fall had been averted, the contact with the pole would not have been quite as severe, or more so, than the fall.

The question, therefore, it seems to us, .was for the jury, even upon this phase of the case, but we are not satisfied that it was not also for the jury as to whether or not the plaintiff was negligent in loosing the belt at or about the time that his work was finished. It was his duty to descend, when his work was done. He unloosed the belt, as he says, because he was about through with his work. He heard the order of the foreman “Pull!” about the time that the belt was unloosed. Was it before, or at the time of, or after, the unloosing of the belt that the order was given? If afterwards, had he time to refasten his belt to the pole before the pull was made? This is not by any means clear from the testimony, and we do not see how the court could have said, as a matter of law, that the plaintiff was guilty of contributory negligence in loosing his belt. It was for the jury, and there is no fault alleged with the charge of the court in the manner of leaving the question for their consideration.

There is no assignment of any portion of the charge for error and the single question, as raised by both the assignments, was, Could the court, as matter of law, say to the jury, or say after the finding of the jury, that the plaintiff was guilty of contributory negligence? We think the case was not such as enabled the court to say this, and it was, therefore, correct in refusing the defendant’s point, and also in discharging the rule for judgment, notwithstanding the verdict.

Judgment affirmed.


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    Keller, Appellant, v. Pennsylvania Railroad Company.

      Common carriers—Carriers—Railroads—Contract—Implied contract —Specified contract.

    1. Where an owner of goods has brought an action of assumpsit against a terminal carrier to recover damages for the loss or injury of the goods, and has rested his case on the implied common-law contract of a carrier to deliver goods safely, he cannot complain of a nonsuit entered against him, when it is developed during the course of the trial that he had entered into a special contract with the initial carrier which covered the transportation of his property not only over the lines of the initial carrier, but also over the lines of any connecting carrier necessary to reach the destination.
    2. In such an action the plaintiff’s case cannot be sustained by mere proof of the damaged condition of the goods when delivered at destination, and the presumption of negligence thereby arising.
    Argued Nov. 16, 1910.
    Appeal, No. 122, Oct. T., 1910, by plaintiff, from order of C. P. Lancaster Co., Aug. T., 1907, No. 5, refusing to táke'off nonsuit in case of Z. W. Keller v. The Pennsylvania Railroad Company.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit against a carrier to recover damages for injuries to goods. Before Landis, P. J.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      B. F. Davis, for appellant.
    The action may be either in assumpsit or trespass: Eckert v. R. R. Co., 211 Pa. 267; Baylor v. Stevens, 16 Pa. Superior Ct. 365; Furbush v. Buchsbaum, 34 W. N. C. 147; Zell v. Dunkle, 156 Pa. 353; Vuille v. R. R. Co., 42 Pa. Superior Ct. 567.

      W. U. Hensel, for appellee.
    This case is ruled by Leh v. D., L. & W. R. R. Co., 30 Pa. Superior Ct. 396.

      March 3, 1911:
   Opinion by

Head, J.,

Even if we agree with the learned counsel for the appellant, that he who relies on the general obligation of a common carrier to carry his goods safely and who finds his property damaged when it reaches its destination, may, at his option, sue in trespass for a breach of duty or in assumpsit for a failure to perform an implied contract, we have not yet reached the crux of the question presented by this record. Whilst in many of the familiar transactions of everyday life the law will imply a contract where none has been expressed, this in no way impinges on the rights of the parties concerned to make contracts for themselves. When therefore, in such cases, the parties to any transaction have chosen to specially contract for themselves, they thereby set aside and supersede the implied contract which the law would otherwise make for them. In such cases the respective rights and obligations of the parties are to be ascertained and enforced by the application of the principles of law and rules of evidence that ordinarily control, in the decision of litigated questions, between parties who have entered into declared contractual relations with each other.

From the testimony offered by or for the present plaintiff it appears that his case was this: He was the owner of a number of horses which he desired to have transported by rail from Walkersville in the state of Maryland to Mount Joy in Lancaster county, Pennsylvania. The point of shipment is located on the line of the Northern Central Railroad Company and is not reached by the lines of the defendant. The point of destination is situate on the lines of the defendant company and not reached by those of the company first named. The lines connect at Columbia in Lancaster county. It is therefore apparent that the plaintiff's property had to be transported by the initial carrier to the end of its line and by a connecting carrier thence to its destination. He delivered his horses to the initial carrier, at the point of shipment, under the terms of a special contract in writing into which he entered with that company, presumably for his own benefit. This contract, as appears by a coupon detached therefrom, delivered to the plaintiff and offered in evidence by him, was what is called a “uniform live stock contract.” Iiow far or in what respect this contract modified the relation that would have otherwise existed between shipper and carrier we cannot say because the contract was neither sued on nor offered in evidence. But it does appear that it covered the transportation of the plaintiff’s property not only over the lines of the Northern Central Railway, but also over the lines of any connecting carrier necessary to reach destination. In pursuance of this contract the Northern Central Railway Company furnished to the plaintiff a car on its siding at the point of shipment. This car happened to be the property of the defendant company, but this fact has no more significance than if the car had belonged to a railroad west of the Mississippi river or operating in New England only. It was furnished by the initial carrier for a through shipment to destination, and for the purposes of this case must be regarded as the car of that carrier.

When the car reached Mount Joy and the plaintiff undertook to unload his horses, he found that several of them had been injured, probably by reason of some defect in the car. There was evidence to show that when the car arrived one of the slats near the floor had become loose and misplaced, and some defect was apparent in the condition of the car door, and the jury would have been warranted in finding, that it was because of these defects that the horses suffered injury. It also appeared that a similar defect was noticed before the horses were loaded, but it had been repaired, to the plaintiff’s satisfaction, before shipment. When the board or door again became defective and the consequent injury occurred, whether on the line of the initial carrier or this defendant, the evidence in no way discloses.

To recover damages for this injury the plaintiff brought this action of assumpsit against the defendant, the connecting carrier. In his statement of claim he declares that his cause of action existed in the fact that the defendant, being a common carrier, had committed a breach of its implied contract to carry and deliver his horses safely. His statement thus plants his right to recover on a breach of the general contract which the law would have implied, had he made none for himself, and ignores entirely the fact that he had entered into an express contract with the initial carrier covering the through shipment. In the face of the fact that he thus had an express contract, he not only declared upon a different contract, which the law would imply only in the absence of an express one; but he failed in his proof to show any breach of any contract by the defendant company. He then sought to rely on the presumption which the law raises where the suit is based on an implied contract, or where the action is in tort for a negligent breach of duty. At the conclusion of his testimony the learned trial court entered a compulsory nonsuit and afterwards refused to take it off, and the propriety of this action is practically the only question raised by this appeal.

Although we may agree, for the purposes of this case, that the plaintiff could maintain an action of assumpsit for the breach of the implied contract made by the carrier on the receipt of his property, had he chosen to make no other contract for himself, we think, both on reason and authority, that when it appeared that the plaintiff had entered into an express contract, his action, founded on an entirely different contract, necessarily failed.

Many cases could be cited in support of this proposition, but we content ourselves with the following references to two of the recent ones where the entire doctrine is discussed. In Crary v. Lehigh Valley Railroad Company, 203 Pa. 525, the plaintiff was a passenger on the train of the defendant. He had entered into a special contract for his transportation by the purchase of a particular kind of ticket which established other relations between the parties than those that would have existed had he simply paid the usual rates for transportation and relied on the implied contract which the law would thereupon have raised on the part of the carrier. Whilst seated next to the window in the defendant’s car “the door of a freight car on a passing train became loose and was thrown against the car in which the plaintiff was seated, and in scraping along the car came through the window, where the plaintiff sat, and caused the injury for which suit was brought.” The plaintiff, having proven that he was a passenger and injured in the manner described, without any proof of any act of negligence on the part of the defendant, rested his case on the presumption raised by the law where a passenger would be similarly injured who had no express contract with the carrier, but relied entirely on the obligation which the law would imply for him. The learned trial court directed a verdict for the defendant on the ground that the evidence was not sufficient to establish any negligence on its part and that the plaintiff, having entered into a special contract with the defendant, “was not entitled to the ordinary presumption of negligence in favor of passengers where there has been an injury to the means of transportation.” In affirming this judgment, Mr. Justice Brown, speaking for the court, said: “At common law if property was lost or injured while in the hands of the carrier, the burden of proof was on the carrier to. show the existence of such circumstances as were sufficient to excuse him from liability. Such is still the general rule, but when a special contract is entered into between the shipper and the carrier, the contract takes the place of the common-law rule and fixes the liability of the carrier: Penna. R. R. Co. v. Raiordon, 119 Pa. 577.”

It is, of course, true in Pennsylvania that even where there is a special contract between shipper and carrier, the latter is not permitted, on grounds of public policy, to extinguish or even restrict its liability for a loss occasioned by its own negligence. But even in such cases the shipper, suing on his contract, must prove affirmatively the act of negligence on which he relies. He cannot avail himself of the presumption which the law raises only in favor of him who relies on a contract that the law makes for him. In Leh v. D., L. & W. Railroad Co., 30 Pa. Superior Ct. 396, we have a case in which the facts are almost identical with those exhibited by this record, and which we can in no way distinguish in principle from the one in hand. There the plaintiff shipped nineteen horses at Indianapolis, Indiana, consigned to Nazareth, Pennsylvania. The car containing the horses was delivered at the point of destination by the defendant company, the connecting and final carrier. Some of the horses, being found to be injured, the plaintiff sued the final carrier, as in this case, and relied, as here, on the presumption of negligence arising from the fact that his horses were found to be injured when they reached their destination. There, as here, it appeared that the plaintiff had entered into a written contract with the initial carrier covering the through shipment. There, as here, the learned trial court entered a compulsory nonsuit which he afterwards refused to take off. In affirming the judgment, Judge Oelady, speaking for this court, after discussing the general principle involved and citing many cases, said: “No reason has been suggested to affect in any way the validity of the contract made by the plaintiff at Indianapolis, and, as it covered the transportation of the horses over all the intervening lines to the point of destination, he cannot proceed, piecemeal against the several carriers under their common-law liability while his special contract involved the whole distance. He cannot abandon the express contract and resort to an implied one; the one voluntarily made by him must be the measure of his rights and liabilities.”

As already stated, we can find no substantial ground on which that case can be distinguished from the present one, and on well-established principles we must follow it. The plaintiff, therefore, having rested his case on the implied common-law contract of a carrier, when it appeared that he had entered into a special contract for the transportation of these horses, and when his proof failed to disclose any act of negligence by the defendant carrier or any breach of the contract which he had made for himself, we are driven to the conclusion that the learned trial judge was right in holding that the proof failed to sustain the plaintiff’s cause of action, and the compulsory nonsuit was therefore properly entered.

This view of the case renders it unnecessary for us to consider the fourth assignment of error which goes only to the exclusion of certain testimony tending to show the damages sustained by the plaintiff. The first, second and third assignments of error are overruled.

Judgment affirmed.


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    Beyer, Appellant, v. Keylor.

      Decedents’ estates—Lien on real estate—Expenses of administration— Costs of suit pending at death—Statute of limitations—Act of June 14, 1901, P. L. 562.

    Where the plaintiff in an action of trespass dies pending the action, and her administrator is substituted as plaintiff, and subsequently judgment goes against the plaintiff, and the latter’s costs are taxed and confirmed by the court, such costs are part of the expenses of administration of the plaintiff’s estate, and are not within the terms of the Act of June 14, 1901, P. L. 562, which limits the lien of decedent’s debts on real estate to two years after the death of the decedent. The words of the act are “debts of a decedent,” and the costs in question are .in no sense of the term a debt of the decedent, existing at the time of her decease. They are merely expenses of administration, and are collectable out of real estate if there is a deficiency of personalty.
    Argued Nov. 16, 1910.
    Appeal, No. 211, Oct. T., 1910, by plaintiff, from judgment of C. P. Lancaster Co., Sept. Term, 1909, No. 24, for defendants non obstante veredicto in case of David H. Beyer v. Henry S. Keylor, surviving husband, and Nannie Keylor and Frank S. Keylor, children and heirs and terre-tenants of Martha E. Keylor, deceased.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Reversed.
    Scire facias sur judgment. Before Landis, P. J.
    From the record it appeared that on June 12, 1905, Martha E. Keylor commenced an action of trespass against David H. Beyer, to August Term, 1905, No. 2, and on December 15, 1906, while it was still pending, she died intestate, leaving to survive her a husband, Henry S. Keylor, and two children, Nannie Keylor and Frank S. Keylor, as her heirs at law. On January 21, 1907, her death was suggested upon the record of the above suit, and Henry S. Keylor, as her administrator, was substituted as plaintiff. On December 7, 1907, the case came on for trial, and a verdict was rendered by a jury in favor of the defendant. On January 22, 1908, the jury fee was paid, and judgment was entered upon the verdict. Rules for the taxation of costs were subsequently entered, and these were finally disposed of on March 27, 1909. The amount of costs taxed in the suit in favor of the defendant was $116.79. The decedent left no personal property, and, in order to charge the land of Martha S. Keylor in the hands of her heirs, a scire facias was issued on the original judgment on August 19, 1909, to September Term, 1909.
    The court gave binding instructions for plaintiff and the jury returned a verdict for plaintiff for $116.79. Subsequently the court entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant n. o. v.

      B. F. Davis, for appellant.
    Claims for services rendered and expenses incurred in the settlement of an estate, are not debts within the meaning of the act: Cobaugh’s App., 24 Pa. 143; Reynold’s Est., 195 Pa. 225; Demmy’s App., 43 Pa. 155; Bredin v. Agnew, 8 Pa. 233.

      W. U. Hensel, with him W. C. Rehm, for appellees.—
    The suit entered to August Term, 1905, No. 2 was tried and concluded in ample time for the appellant to index his claim in the judgment index against Martha E. Keylor’s estate; and he could only make it a lien on her real estate by conforming to the statutory provisions.
    Not a single case cited in the argument of appellant is germane to the question involved here because all of the decisions refer to cases decided prior to the Act of June 14, 1901, P. L. 562, and had reference to the previous Acts of February 24, 1834, P. L. 70, and June 8, 1893, P. L. 392: Koering’s Est., 34 Pa. Superior Ct. 425.
    At the end of the two year period the lands of a decedent are discharged from the lien of the debts, and are not assets for the payment of such debts, whether in the hands of the heirs, or devisees or purchasers: Kerper v. Hoch, 1 Watts, 9; Oliver’s App., 101 Pa. 299; McNutt’s Est., 15 Pa. Dist. Rep. 429.
    March 3, 1911:
   Opinion by

Rice, P. J.,

Martha E. Keylor brought an action of trespass against David H. Beyer, the appellant, to recover damages for the deprivation of the use of a certain spring which she claimed was upon or appurtenant to land owned by her. She died on December 15, 1906. Her husband was appointed administrator of her estate and, as such, was substituted as plaintiff in the action. The subsequent trial resulted in verdict for defendant on December 7j 1907, and judgment thereon on January 22,1908. Subsequently the costs were taxed by the prothonotary, and, upon appeals therefrom to the common pleas, his taxation was confirmed. The costs taxed in favor of Beyer, the defendant in the action, were $4.00, the jury fee paid by him, and his witness bill, amounting to $112.79. He then presented a petition to the orphans’ court for a citation on the administrator to file an account. An answer was' filed by the latter and, after hearing, the court refused the citation on the ground that the decedent left no personal property. Beyer then (August 19, 1909) issued this writ of scire facias against Harry S. Keylor, the surviving husband, and the other two appellees, who were the children and sole heirs of the decedent and terre-tenants of the premises, to show cause why the amount of his judgment for costs should not be charged against the real estate of the decedent. The defendants in the scire facias pleaded non assumpsit and payment, and, the above facts being proved or admitted on the trial, the jury, by direction of the court, rendered a verdict in favor of Beyer for the amount of his judgment for costs, $116.79. Subsequently the court entered judgment for the defendants in the scire facias n. o. v., and from that judgment we have this appeal.

The learned trial judge conceded that the real estate of the decedent would be liable for the costs incurred, there being no personal property, if it had been promptly proceeded against, and as to that there can be no doubt. But he held, and the counsel for the appellees contend, that recovery out of the real estate was barred by the Act of June 14, 1901, P. L. 562, which provides: “That no debts of a decedent, except they be secured by mortgage or by judgment entered or revived by scire facias within five years prior to the death of such decedent, shall remain a lien on the real estate of such decedent longer than two years after the decease of such debtor, unless an action for the recovery thereof be commenced, and be indexed in the judgment index as other liens are indexed against such decedent, his heirs, executors or administrators, within the period of two years after his decease, and duly prosecuted to judgment.” It so happens in the present case that the judgment for costs was obtained within two years after the death of the decedent. But it might not have been obtained until after the lapse of that period. Any permissible construction of the act of 1901 that would bar recovery in the case in hand, would also bar recovery, and for the same reason, in the supposed case. The unreasonableness of such a construction of the act would, of itself, prevent its adoption, unless compelled by the very words of the act. But the words of the act not only do not compel that construction, but they clearly show that the legislature did not have in mind a charge upon the estate of the decedent accruing after his death. The words are “debts of a decedent," and the debt or charge under consideration was in no sense of the term a debt of the decedent, existing at the time of her decease. No question is, or can be, raised as to the propriety of the administrator of her estate having himself substituted as plaintiff and prosecuting the action until it was terminated by final judgment in favor of the defendant. If, upon the costs being taxed, the administrator had paid them, he would have a right to reimbursement out of the real estate, there being no personalty, as part of the expenses of administration. The right of the defendant to recover his costs cannot depend upon the voluntary action of the administrator. Whether paid voluntarily by the administrator, Or enforced by the defendant by proceedings against the estate of the decedent, these costs fall properly under the head of expenses of administration; and, as already intimated, the act of 1901 does not, in terms, bar recovery thereof at the expiration of two years from the death of the decedent. No case bearing directly upon the question of the applicability of the act of 1901 to administration expenses has been cited, and it is stated by counsel that there is no reported case covering the precise question. But it was well settled in the construction of the Act of February 24, 1834, P. L. 70, and the Act of June 8, 1893, P. L. 392, that the limitation period prescribed by those acts did not apply to administration expenses. In Cobaugh’s Appeal, 24 Pa. 143, Black, C. J., said: “The law limiting the lien of a decedent’s debts does not apply to the compensation earned by and allowed to the executor or administrator. That compensation is not a debt of the decedent, but a part of the expenses of administration. The right to it may accrue after the seven years have expired. The whole scope and spirit of the act shows that it was intended to prevent heirs and purchasers from being surprised by claims against the decedent himself, not placed on record in proper time.” The claim in question, as has been seen, is not a claim against the decedent herself. Again, in Demmy’s Appeal, 43 Pa. 155, Judge Pearson, of the orphans’ court, speaking of sums paid by the administrator for services performed for the benefit of the decedent’s estate after his death, said: “Although valid charges against the estate of the decedent, they are not debts due by him, and do not, in our opinion, come within the provisions of sec. 24 of the act of. February 24, 1834, which we construe to apply to no debts except those contracted by the decedent and existing at the time of his death. We think that neither the words nor the policy of the law will give it a broader construction. An executor or administrator may be necessarily delayed for many years in settling the final account; he may be delayed by litigation or other causes; may have the sanction of the court for that delay, and after the five years have expired, and the expenditure of the personal assets, be involved in large sums for counsel fees, personal attendance, and the fees of officers, etc. It would appear both strange and highly improper to throw the whole loss on the executor or administrator, or to say that the creditors shall lose their debts, when there is an ample real estate to pay them.” This conclusion was sustained by the Supreme Court on appeal. In Emerick’s Est., 172 Pa. 191, it is said: “It must be an existing debt at the time of decedent’s death; claims for services thereafter rendered and expenses incurred in the settlement of his estate are not debts within the meaning of the act.” So in Reynold’s Est., 195 Pa. 225, the present chief justice said: “The orphans’ court has jurisdiction to decree the sale of the real estate of a decedent to pay the expenses of the administration of his estate. Such expenses are not debts of the decedent, and the law limiting the lien of his debts does not apply to them, and a sale for their payment may be decreed after the expiration of the lien of the debts of a decedent: Cobaugh’s Appeal, 24 Pa. 143; Demmy’s Appeal, 43 Pa. 155.” These decisions, under prior acts limiting the lien of the debts of a decedent, are pertinent and controlling in the construction of the act of 1901. There is nothing said or decided in any of the cases cited in the opinion of the learned judge below, or in the appellees’ brief, which is in any way in conflict with the foregoing conclusion. It follows that the court was right in giving binding direction for the plaintiff.

The judgment is reversed, and the record is remitted to the court below with direction to enter judgment on the verdict.