text:
    Stephens, Appellant, v. Barnes.

      Contract — Parol contract for sale of land — Breach—Action for damages— Statute of frauds — Vendor and vendee.

    Under the Pennsylvania statute of frauds and perjuries, an action may be maintained for the recovery of damages for the breach of a parol contract for the sale of land. The measure of damages in such a case, in the absence of fraud by the vendor, is the actual purchase money paid, and actual damages incurred by the vendee, and if no purchase money was paid, and no actual expenses incurred, then mere nominal damages can be recovered.
    Where the plaintiffs make out a prima facie case by proving the contract, and the breach of it, and the defendants prove that without any fraud or collusion on their part, they were unable to carry out the contract, the burden is then upon the plaintiffs to prove fraud, if any exists.
    The fraud necessary to entitle the vendee to recover must be such as inhered in the original agreement. A subsequent fraudulent purpose is not enough.
    Where in an action to recover damages for the breach of a parol contract to sell land, the vendors show that they were unable to carry out the contract because the husband of one of the parties in interest refused to sign the deed on the ground that his wife was to receive shares of stock and not cash, the defendants cannot be charged with more than nominal damages over and above the purchase money paid, and expenses actually incurred by plaintiff.
    Argued Dec. 6, 1905.
    Appeal, No. 281, Oct. T., 1905, by plaintiff, from judgment of C. P. Lebigh Co., Oct. T., 1902, No. 54, on verdict for plaintiffs in case of Maggie A. Stephens, Executrix of Morris J. Stephens, deceased, and Avon Barnes v. Avon Barnes et al.
    Before Rice, P. J., Beaver, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit for breach of a parol contract for the sale of land. Before Heydt, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    Defendants presented the following points :
    2. Under all the evidence in this case, the plaintiff, if he is entitled to recover anything, can recover no more than nominal damages. Answer: Affirmed. [3]
    4. There being no allegation in the plaintiff’s narr of fraud, misconduct or artifice by the defendants in the rescinding of the bargain or contract of sale, there can be no recovery for the loss or profit in the bargain. The true measure of damages in this case under the evidence, is for moneys expended, if any were expended, and nominal damages only. Answer: Affirmed. [4]
    5. There being no fraud or artifice shown on the part of the defendants and no evidence to show that money was paid out on the faith of the contract by the plaintiffs, there can be no recovery except for nominal damages. Answer: Affirmed. [5]

      The court charged in part as follows :
    [Then we come to the question, what are the damages of the plaintiffs ? The contention of the plaintiff was that if the plaintiff was entitled to recover he was' entitled to recover the difference between the price named in the contract and what this property was worth in the market at the time of the breach of the contract. We have not been able to convince ourselves that that is the law in Pennsylvania. It is the law in a great many states. It is the law — called the United Supreme court rule — that where a person makes a contract and there is a breach of it, that person is liable in damages to the innocent party, or to the one who does not break the contract for loss of his bargain. That is the rule in a great many states, but, so far as I have been able to glean from the cases, it is not the law in Pennsylvania.] [6]
    [The rule of law in Pennsylvania is that when the vendor without fraud on his part is incompetent to make out a title the vendee is not entitled to damages for the loss of his bargain beyond the money paid, with interest and expenses," although the completion of the bargain might have been profitable to him. But where the vendor is guilty of collusion, tort, artifice or fraud to escape from a bad bargain, the vendee is entitled not only to compensatory damages, but to damages arising from the loss of the bargain, or the money he might have derived from its completion.
    In this case there is no evidence that there was any fraud, or collusion, or trick, or artifice in the making of this contract, and, therefore, the court is of the opinion, and so instructs you, that the plaintiff is not entitled to recover for the loss of his bargain. As I recollect the testimony there is also no proof of any expense or any damages in this case. If the plaintiff had any proper legitimate expenses by reason of the breach of this contract those he would have been entitled to recover if he had proved them. I have no doubt that he was put to some expense, but there is no proof of those expenses before you, and you are not to find any expense without proof, so that the instruction of the court to you is that you are to render a verdict for the plaintiff in nominal damages.] [7] Verdict and judgment for plaintiff for $1.00. Plaintiff appealed.

      January 13, 1906:

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

      M. C. L. Kline and John Rupp, with them C. A. Groman, for appellant,
    cited: Bowser v. Cessna, 62 Pa. 148; Hopkins v. Lee, 19 U. S. 109; Bitner v. Brough, 11 Pa. 127; Hennershotz v. Gallagher, 124 Pa. 1.

      A. G. Dewalt, for appellee.
   Opinion by

Morrison, J.,

This was an action in assumpsit brought by the plaintiffs against the defendants to recover damages for the breach of a written agreement for the sale of certain real estate. The agreement is somewhat peculiar. In consideration of the sum of 11.00 it bound the defendants to sell and convey unto the other parties to the contract, 140 acres of land at a price of $225 per acre, until November 1, 1902. The other parties to the contract did not agree to purchase the land and pay for the same, nor did they in fact pay anything, except the $1.00 recited in the contract. In short, the second parties bargained for 'the option of purchasing the property at any time between July and November 1, 1902, but they were entirely free to refuse to purchase the land, if they so elected.

We call attention to this one-sided contract because it does not clothe the plaintiffs with any very strong equities, and especially is this so, because there is no proof that they paid or expended any money on or about the premises or that they suffered any real damages, unless they are entitled to recover the difference in value of the property on account of an advance, during the term of the option, of the value of the property from $225 to about $500 per acre. There was no evidence of fraud, collusion, tort, trick or artifice to escape from a bad bargain on the part of the defendants; and the court instructed the jury that the plaintiffs were entitled to recover nominal damages only. This instruction is the basis of all of the assignments of error.

It is unnecessary to discuss, at length, the question of the measure of damages for the breach of a parol contract for the sale of land. Under the statute of frauds and perjuries there can be no enforcement of specific performance for the sale of real estate under a parol contract. The English statute of frauds and perjuries prohibited such actions, but under our statute actions may be maintained for the recovery of damages for the breach of a parol contract for the sale of land. The measure of damages in such cases is the actual purchase money paid, and actual damages incurred by the vendee, and if no purchase money was paid, and no actual expenses incurred, then mere nominal damage could be recovered. This has always been the law in Pennsylvania, except from about 1848 to 1859, when the case of Jack v. McKee, 9 Pa. 235, was in effect establishing a different rule. That case was followed by Bash v. Bash, 9 Pa. 260; McDowell v. Oyer, 21 Pa. 417, and by Malaun’s Admr. v. Ammon et ux., 1 Grant, 123, where the same rule obtained and was supposed to be the law. But the case of Jaek v. McKee and those resting upon its authority were, however, expressly overruled by the Supreme Courtin Hertzog v. Hertzog’s Administrator, 34 Pa. 418, in which the rule is thus expressed in the syllabus: “ In an action for the breach of a parol contract for the conveyance of land, in consideration of money paid and services rendered, the damages are to be measured by the amount of the consideration, and not by the value of the land. The plaintiff cannot recover damages for the loss of the bargain.” The rule ever since has been indemnity or restoration of the parties to their condition before the contract was made. Woodward, J., in his opinion gives the reason for the rule, that any other rule would be, in effect, a nullification of the provisions of the statute of frauds and perjuries, and would practically amount to the enforcement of the specific performance of such parol contract. See also Justice Woodward’s dissenting opinion in Malaun’s Admr. v. Ammon, 1 Grant, 123, also reported in 34 Pa. 423. This dissenting opinion was afterwards unanimously adopted by the entire court and is now the settled .law of the state. See also McCafferty v. Griswold, 99 Pa. 270; Allison v. Montgomery, 107 Pa. 455; Mellon v. Davison, 123 Pa. 298; Sausser v. Steinmetz, 88 Pa. 324.

In Bitner vi Brough, 11 Pa. 127, the rule as to the measure of damages for the breach of a written agreement for the sale of real estate is stated, as fairly summarized ■ in the syllabus, thus: “ Where the vendor, without fraud on his part is incompetent to make out a title, the vendee is not entitled to damages for the loss of his bargain, beyond the money paid with interest and expenses, although the completion of the bargain might have been profitable to him. But where the vendor is guilty of collusion, tort, artifice and fraud, to escape from a bad bargain, the vendee is entitled, not only to compensatory damages, but to damages arising from the loss of the bargain, or the money he might have derived from its completion.”

In Rineer v. Collins, 156 Pa. 342, the case of Bitner v. Brough is referred to and Mr. Justice Green (p. 348) said: “ The learned court below instructed the jury that if the defendant willfully and purposely put it out of his power to comply by selling the land to another, the plaintiff, who was the vendee, could recover a sum equal to the difference between what Rineer was to pay Collins and what Collins received from Eshelman for the land. We have not been referred to any authority which adjudges the rule of damages in this way in the circumstances which were present in this case. Bitner v. Brough, 11 Pa. 127, much relied upon for the plaintiff, was a totally different case. It was an action for damages for breach of a written agreement for sale of the land in question and it was proved on the trial that the purchaser had sold his own farm to raise the money to pay for the one he had bought; had made all his arrangements to move, and did move from his old home in Adams county to the land he had purchased in Franklin county,'with his family, his stock and wagon loads of personal property, five months after the contract, and in utter ignorance of any intention on the part of the seller to repudiate the contract. There was also evidence of collusion between the seller and his wife, to have her refuse to sign the deed, in order to enable the seller to excuse his refusal to perform on that ground, and the whole doctrine of this court declaring a right to recover compensatory damages and for the value of the bargain, was based upon the proposition that there was evidence of fraud, artifice and collusion, upon which such a verdict could be rendered.”

It is true that Justice Green was discussing the measure of damages for the breach of a parol contract for the sale of land. But his language makes it clear that the rule in Bitner v. Brough is not the measure of damages where the seller, without fraud, artifice and collusion is unable to convey the land.

In Hertzog v. Hertzog’s Admr., 34 Pa. 418, Justice Woodward, speaking for the court (p. 420), said: “ The rule was indemnity — compensation for what had been paid or done— restoration of the parties to their condition before the contract was made. And this rule was agreeable to that which prevailed in England and Pennsylvania, in respect to breach of written executory contracts, and that also which was always applied to covenants of seisin, covenants for quiet enjoyment, and covenants against encumbrances, and for further assurance, in deeds of conveyance, or other executed contracts. Where there was no fraud, misrepresentation, or wrongful suppression of facts on the part of the vendqr, but he was simply unable to convey the title stipulated for, or to defend his alienee in the possession granted, he was liable to restore the purchase money received with interest, but not to compensate the vendee for improvements made, or for accretions, from any cause, in the value of the estate. In a word, the measure of damages for breach of real contracts was to be looked for, not in the value of the estate at the time of the breach or eviction, but in the consideration which passed between the contracting parties.” See also Dumars v. Miller, 84 Pa. 319; McNair v. Compton, 35 Pa. 23.

In Bowser v. Cessna, 62 Pa. 148, the Supreme Court, Sharswood, J., said: “ It is equally well settled that the damages to be recovered is the difference between the value of the property at the time of the breach and the sum agreed upon as the price: Ellet v. Paxson, 2 W. & S. 418. It is true that where a vendor, not willfully and fraudulently, but because unable to make title, has not fulfilled his contract, the vendee can only recover back what he may have paid and the expenses to which he has been subjected, but not the damages sustained by the loss of his bargain: Dumars v. Miller, 34 Pa. 319; but that is not because the agreement is by parol. The same rule applies to written contracts and depends upon different principles to which it is unnecessary at present to advert.”

The measure of damages in this state on a broken covenant for title, where there has been no fraud, is the proportion of purchase money lost by failure of title, with interest thereon from the date of the deed. The rule is thus stated in the syllabus of Doyle v. Brundred, 189 Pa. 118.

In the present ease there is no evidence that the plaintiffs went into possession of the land, or that they expended any money on account of the contract at all. It is conceded that Grace Shimer, one of the defendants, was a married woman at the time of the execution of the agreement; her husband did not join in the agreement; at the trial it was proved that the husband refused to join with his wife in the execution of a deed to the plaintiffs, for the reason assigned by him, that his wife was not to receive her share of the purchase money in cash, but in stock of a certain company of which he did not approve. He was not compelled to give any reason, but the proved and conceded reason negatives any possible presumption of fraud. It was also proved at the trial that Avon Barnes refused to execute a deed in pursuance of the contract, because his sisters were not to receive cash for their share of the purchase money, but were to take stock instead of cash. We think this evidence also rebutted any presumption of fraud on the part of Avon Barnes.

The plaintiffs contended that the burden was upon the defendants to show that there was no fraud or collusion on their part; that there was a presumption of fraud and collusion on the part of the defendants arising from the failure to carry out the contract. We cannot agi’ee with this contention. When'the plaintiffs had proved the contract and the breach of it, they had made out a prima facie case such as would entitle them to recover. The burden then rested upon the defendants to prove that they were unable to carry out the contract. This they did by clear, direct and uncontradicted evidence which proved such facts as in law constituted such inability. This condition of things established a rule as to the measure of damages. Then, if the plaintiffs desired to bring the case within the rule applying when the inability to carry out the contract is brought about by the fraud or collusion of the defendants, the burden was upon the plaintiffs to pi’ove it. When the defendants proved their inability to carry out the contract, the presumption of law was that it was bona fide. Fraud is never to be presumed; it must be proved by competent testimony and by the parties allegingit. In Rineer v. Collins, 156 Pa. 342 the Supreme Court said : “ According to all authorities the fraud necessary to entitle the vendee to recover must be such as inheres in the original agreement. A subsequent fraudulent purpose is not enough.”

It does not appear that the plaintiffs ever offered to accept a conveyance, and pay the purchase money, without Grace Shinier and her husband joining therein. The husband did not sign the contract, and he absolutely refused to join in the deed; no earthly power could legally compel him to do so, and without his joining in the deed, the interest of his wife could not be conveyed. Therefore, the defendants could not comply with their contract. In addition, the reason given by Avon Barnes for not joining in the deed seems to be a valid one, and not fraudulent. See also Huffman v. Bradshaw, 17 Pa. Superior Ct. 205, as to refusal of wife to join in the deed.

In addition, as we read the contract, it implies, a payment in cash, if the vendees elected to take the land, and we are unable to discover in the record any evidence of a straightforward offer on their part to comply with the contract. It seems that they were offering stock and securities for the purchase money which were not specified in the contract. This was not pressed at the argument, and we do not rule the case upon that ground, but it would seem to furnish an excuse for the defendants in refusing to convey the land. Upon the facts in this case, we are not convinced that any of the assignments of error can be sustained, and they are all overruled, and the judgment is affirmed.


source: Caselaw Access Project

author: Morrison, J.,

license: Public Domain

text:
    Bechtel v. Mahanoy City Borough, Appellant.

      Negligence — Boroughs—Obstruction of street — Fright of horse — Contributory negligence.

    Where a borough permits an amusement company to erect a Ferris wheel, flying horses, and numerous tents in a street of the borough in such a way as to leave only a narrow way for the passage of wagons, the borough is guilty of gross negligence; but no recovery can be had against it for the death of a horse, where it appears that the horse was deliberately driven through the narrow passage amidst all the paraphernalia of the show. when another and a safer way was at hand. In such a case the contributory negligence of the owner prevents recovery.
    January 13, 1906:
    Argued Dec. 6, 1905.
    Appeal, No. 151, Oct. T., 1905, by defendant, from judgment of C. P. Schuylkill Co., Sept. T., 1903, No. 264, on verdict for plaintiff in case of H. T. Bechtel v. The Borough of Mahanoy City.
    Before Rice, P. J., Beaver, Porter, Morrison and Henderson, JJ.
    Reversed.
    Trespass to recover damages for the death of a horse. Before Shay, J.
    The facts are stated in the opinion of the Superior Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $200. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      T. H. B. Lyon, for appellant.
    — One who undertakes to use a public road, knowing that it is unsafe and knowing the defects which made it so, but not choosing to avoid them, although he could do so by taking another road, cannot recover for an injury resulting from such defects: Hill v. Tionesta Township, 146 Pa. 11; Forks Twp. v. King, 84 Pa. 230; Winner v. Oakland Twp., 158 Pa. 405; Haven v. Bridge Co., 151 Pa. 620; Smith v. City of New Castle, 178 Pa. 298; Erie v. Magill, 101 Pa. 616; Boyle v. Borough of Mahanoy City, 187 Pa. 1; Delaware, L. & W. R. R. Co. v. Cadow, 120 Pa. 559.

      Edgar W. Bechtel, with him James W Ryan, for appellee,
    cited: Wellman v. Borough of Susquehanna Depot, 167 Pa. 239; Mellor v. Bridgeport Boro., 191 Pa. 562; Miller v. Electric Light, etc., Co., 212 Pa. 593; Stanton v. Traction Co., 11 Pa. Superior Ct. 180.
   Opinion by

Morrison, J.,

This is an appeal from a judgment in trespass founded on negligence of the defendant.

In the month of June, 1903, the Columbus Carnival Company, without objection on the part of the borough authorities, set up on Main and Centre streets in the defendant borough, a Ferris wheel, flying horses and numerous tents and booths for show purposes. These streets are each eighty feet in width and run at right angles to each other. A passageway for teams and vehicles, ten or twelve feet wide, was left open and the residue of the streets at this point was occupied by the tents, booths, etc.

The plaintiff was a wholesale dealer having his place of business on Centre street about two squares, or 500 feet, below the location of the carnival company’s show. The most of the tents were up and ready for business on Monday, but some were in course of construction on Tuesday, the day of tbe accident. The accident was caused by the plaintiff’s driver attempting to drive his horse through this narrow passageway, and the theory of tine plaintiff is that the horse became frightened and shied, and fell and broke its leg and had to be killed.

There can be no question about the negligence of the borough officers in permitting the obstruction and use of the streets in the manner indicated by the uneontradicted evidence. The case furnishes a striking example of the utter disregard of their duties to the public by the officials of the defendant borough. The negligence is so palpable that the learned counsel for the defendant conceded it and placed upon the record an admission, in the broadest terms, that the defendant was guilty of negligence, and that the plaintiff was relieved from proving or arguing that question. There is no exception taken to the instruction of the court as to the measure of damages, and this leaves the single question of the contributory negligence of the plaintiff for consideration.

The uncontradicted evidence shows that the plaintiff and his driver had full knowledge of the obstructions in the streets, and that with this knowledge an attempt was made to drive the horse through the narrow passageway left in the street and among the paraphernalia of the carnival show. The uncontradicted evidence also shows that there was no necessity whatever of driving the horse through this street, in the transaction of the business the driver was engaged in; that there was another route which he might have taken, with but slight inconvenience, as it would only have required a few hundred feet more travel than the passage through this dangerously obstructed street. - The driver testified that he was not warned by the plaintiff not to drive through this street, yet the plaintiff admitted that he knew all about the condition of the street at the place of the accident.

Plaintiff testified as follows: “ Q. Did the erection of those tents as they were there on Tuesday morning of the accident, render that street unsafe and dangerous ? A. Yes, I think so; I should think so. Q. It would be dangerous and unsafe to drive it with the ordinary horse ? A. Well, yes, I should think so.” Plaintiff also testified: “ Q. Was your horse a gentle horse ? A. He was — never ran away that I know of — never had any trouble with him. Q. Did you ever know him to shy at anything? A. Not more than the ordinary horse wbuld. I have driven him past cars.”

In the circumstances disclosed by the evidence, the plaintiff stands in precisely the same situation as if he had been driving his own horse. He knew all about the condition of the streets; the place of the accident was only a few hundred feet from his place of business. The horse was driven by his servant and agent; the driver also saw the obstruction and knew of the other route which would have avoided .this dangerous place. The danger was apparent and. notorious; the plaintiff knew it was a dangerous place to drive an ordinary horse and he so testified without qualification. It is a notorious fact, known to all drivers of average sense, that such constructions and erections, as were in the streets in question, would frighten ordinary roadworthy horses. That the horse was driven into a known dangerous place, without necessity or good reason for so doing, is a fact clearly established by the plaintiff’s own testimony.

Upon the question of contributory negligence no material fact was in dispute, nor was there any doubt as to the inferences to be drawn from the proofs. Under this state of facts, it was the duty of the court to have affirmed the defendant’s point's, asking for binding instructions against the plaintiff. Under the evidence, we think, the assignments of error must all be‘ sustained. Some of the cases which establish the contributory negligence of the defendant are the following : Hill v. Tionesta Twp., 146 Pa. 11, where it is said: “ A person who knows a defect on a highway, and voluntarily undertakes to test it when it could be avoided, cannot recover against the municipal authorities for losses incurred through such defect.”

“ A man is as much bound to avoid a known danger on a public highway as anywhere else. Such obstructions are liable to occur. The person or persons by whose negligence they have been placed there, or suffered to remain, may be liable in damages to the parties injured thereby, when they have used reasonable care to avoid such injury ; but it would be a harsh rule to hold that because a man has a right to pass along a public road, he is under no duty to avoid a known danger. Such is not the law.” See also cases cited in Hill v. Tionesta Township. To the same effect is Smith, Appellant, v. City of New Castle, 178 Pa. 298; Forks Township v. King, 84 Pa. 230; Lynch, Appellant, v. Erie City, 151 Pa. 380; also Haven v. Bridge Co., Appellant, 151 Pa. 620; City of Erie v. Magill, 101 Pa. 616; Winner, Appellant, v. Oakland Township, 158 Pa. 405; Conrad v. Upper Augusta Township, 200 Pa. 337; Boyle v. Borough of Mahanoy City, 187 Pa. 1. But it is á waste of time to cite other authorities of which there are a multitude.

The assignments of error are sustained and the judgment is reversed, and judgment is now entered against the plaintiff.


author: Rice, P. J.,.

text:
    Yinger, Appellant, v. Youngman.

      Landlord and tenant — Contract—Parol evidence — Contemporaneous agreement.

    Where, after the date of a lease, the tenant enters into an agreement in writing to pay a sum' in addition to the rent fixed by the lease for heating the portion of the building leased, the tenant may show in an action of replevin for goods distrained that he was induced to sign the agreement by a contemporaneous oral agreement by which the landlord was to put in heat radiators, and that this oral agreement was not fulfilled; but this he must show by evidence which is clear, precise and indubitable; and he must also show that through the failure to put in radiators, the premises were not adequately heated.
    Argued March 9, 1905.
    Appeal, No. 1, March T., 1905, by plaintiff, from judgment of C. P. Lycoming Co., June T., 1903, No. 148, on verdict for defendant in case of William Yinger v. Samuel L. Young and Robert Mitchell.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter and Henderson, JJ.
    Reversed.
    Replevin for goods distrained. Before Hart, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows :
    [It appears that Mr. Lambert took possession of these premises, and some time in June following, by an arrangement between him and the plaintiff in this case, William Yinger, Mr. Yinger took possession of this property in the place, and stood in the shoes of Mr. Lambert, and the rights he was possessed of there were no higher than Mr. Lambert possessed; and the relation that existed between him and Mr. Youngman from the time he became the tenant of that property was the same that had existed between Mr. Youngman and -Mr. Lambert. Yinger’s goods upon the premises were just as much liable for seizure for rent in arrear as Mr. Lambert’s goods were liable while they were there.]
    [It also appears from the evidence that there was steam heat in this building; that the building was supplied with steam heat from the Updegraff steam heat plant; but it is complained on the part of the plaintiff here, Mr. Yinger, that there was not sufficient heat in that building. Now, you have heard some description here of the condition of that room. I can say to you that it was the duty of Mr. Yinger to make such use of the room as was reasonable he should make; in other words, if there were openings in the room where the cold could get in and which could be easily repaired, some duty was due from him in that respect. Another thing, it is in evidence that there were radiators on the floor and that there were places to attach these radiators ; and in the absence of any positive agreement on the part of Mr. Youngman that he should attach those radiators, even if you believe that Mr. Youngman agreed to furnish the radiators, they were there, and it was as much his duty to attach them as it would be Mr. Youngman’s. Such an excuse as that is hardly sufficient to avoid the payment of rent, if you believe the rent was honestly due.] [5]

      [Now, it is claimed, on the part of the plaintiff that since the issuing of this writ of replevin, or since 'the issuing of the landlord’s warrant, $50.00 has been paid to Mr. Youngman. You have heard the circumstances under which that claim is made. A check was given to Mr. Youngman for the sum of $50.00. This check has never been paid. It is in the .hands of Mr. Youngman, and I understand he has presented it to the bank, and you have heard what has been said in reference thereto. Now, I can say to you that if Mr. Youngman had received that $50.00 represented by that check, that that would be a payment on account of this $90.00, but a check is not payment unless it is received as such and the check has actually been paid. Hence, the question is here, what amount of rent was due and unpaid on this lease at the time that this levy was made, which was on March 14, which I understand would include the rent for that month, because the rent is made payable in advance — hence the question is, what would be due on April 1,1903 ?] [6]
    Plaintiff presented these points :
    1. If the jury find from the evidence that S. L. Youngman at the time the memorandum for steam heat was made on the back of the lease, agreed to put radiators in the premises leased from him by plaintiff, and that he failed to keep his agreement, and that the plaintiff has paid the rent for the premises in question, then the verdict must be for the plaintiff, William Yinger. Answer : We say to you if you find the rent for the premises has been paid by the plaintiff, then your verdict, of course, would have to be for the plaintiff ; but with reference to the matter of radiators, as referred to in this point, we have already charged you particularly with reference to the law upon that subject; and with what we have said in our general charge with reference to that, we will affirm this proposition. [7]
    3. Under all the evidence in this case the verdict of the jury should be for the plaintiff, William Yinger. Answer .-We refuse to so charge you. [8]
    Verdict and judgment for defendant for $90.45 for rent in arrears and for $65.00, the value of the goods distrained. Plaintiff appealed.

      March 12, 1906:

      Errors assigned were (1) in admitting in evidence the lease between the parties ; (2, 3) in refusing to admit evidence as to the oral agreement referred to in the opinion of the Supreme Court; (4-8) above instructions, quoting them.

      J. M. Reilly, with him J. Horace Shall and Edw. S. McGraw, for appellant,
    cited: Pyroleum Appliance Co. v. Williamsport Hardware & Stove Co., 169 Pa. 440.

      C. Bartles for appellees,
    cited: Long v. Fitzsimmons, 1 W. & S. 530; Cornell v. Vanartsdalen, 4 Pa. 364; Bears v. Ambler, 9 Pa. 194; Kline v. Jacobs, 68 Pa. 57; Moore v. Weber, 71 Pa. 429; Eberle v. Bonafon, 17 W. N. C. 335; Pioso v. Bitzer, 209 Pa. 503; Replogle v. Singer, 19 Pa. Superior Ct. 442; Knight’s Estate, 20 Pa. Superior Ct. 413.
   Opinion by

Rice, P. J.,.

This was an action of replevin for goods distrained-in March, 1903, under a lease from Samuel Youngman to H. J. Lambert for the term of one year from April 1, 1902. Crediting the admitted payments the amount distrained for was in excess of the amount due under the terms of the lease. The right to distrain for this excess was claimed under the following agreement under seal between Youngman and Lambert indorsed on the back of the lease : “And now, October 22, 1902, I agree that the price required for heating my half of the large .storeroom, Nos. 336-338 Pine street, may be added to the rent provided herein which is $25.00 for the entire store, my half $12.50, subject to the conditional reduction proposed in proposition of F. H. Moore, proprietor of the steam plant.” It appeared by the testimony of Youngman, the defendant, that the- charge of the steam heating company for heating the entire building, beginning in October, 1902, was $25.00 a month, for which he as owner of the building would be held by the company, and that the’ purpose of the agreement was to secure reimbursement from Lambert for the share of the cost which would be chargeable to his half of the building. Yinger, the plaintiff, who for the purposes of this case, the court correctly held, stood in the-place of Lambert, then offered to prove by Youngman, he being then under cross-examination, that, on the date of the agreement indorsed on the lease, Youngman stated to Lambert that if he would sign this memorandum, he, Youngman, would put radiators in the building to furnish the steam heat, that he would have this done by the steam heat company or some other person on the following day; that relying on this promise Lambert signed the agreement, and that Youngman never put radiators in the building in accordance with his promise. This is the substance of the two offers, the rejection of which constitutes the subject of the second and third assignments of error. The fair import of the promise as stated in the offers was not merely that the radiators would be supplied or delivered to the building, but that they would be put in the building so as to furnish heat.

One obvious and very material difference between this case and Eberle v. Bonafon’s Exr., 17 W. N. C. 335, upon which the defendant relies, is that in the case cited tire effort was to strike out by parol a covenant in a lease under seal and to substitute for it an oral agreement alleged to have been made at the same time which was flatly contradictory of it. In the same class of cases belongs Wodock v. Robinson, 148 Pa. 503. See also Fidelity Trust Co. v. Kohn, 27 Pa. Superior Ct. 374. The case holds that without proof of fraud or mistake in the execution of the instrument the parol evidence was not admissible. Here, however, the offer was to show a contemporaneous oral agreement on the faith of' which the writing was signed, which is not contradictory of anything that is expressed or necessarily implied in the writing, but which relates to a matter concerning which the writing is silent, namely, as to who was to put in the radiators necessary to furnish the heat for which the tenant was to pay. The other cases cited by the appellant’s counsel relate more particularly to the quantity and quality of proof required to set aside or reform an instrument on the ground of fraud or mistake. They cannot be said to overturn the rule recognized and applied in a multitude of Pennsylvania decisions, that parol evidence is admissible of a contemporaneous oral agreement which induced the execution of a written contract, though it may vary, change or reform the instrument (see Fidelity and Casualty Co. v. Harder, 212 Pa. 96 and cases cited), or the rule, that parol evidence is admissible to prove other or greater consideration than that expressed, provided it is not contradictory of or inconsistent with that expressed (Buckley’s Appeal, 48 Pa. 491; Miles v. Waggoner, 23 Pa. Superior Ct. 432), or to overrule the cases in which such evidence has been held admissible to prove a contemporaneous oral agreement collateral to but not inconsistent with the written agreement. See Parcell v. Grosser, 109 Pa. 617; Bartley v. Phillips, 165 Pa. 325. The late cases unquestionably do hold more strictly than some of the earlier ones that such oral agreement must be shown by evidence that is clear, precise and indubitable. This was emphasized by the late Justice Dean in Sutch’s Est. No. 1, 201 Pa. 305, but the first mentioned rule, stated in the language we have quoted from Thomas v. Loose et al., 114 Pa. 35, was distinctly recognized. It was reiterated in even broader terms in one of the most recent utterances of the Supreme Court upon the subject—Fidelity and Casualty Co v. Harder, 212 Pa. 96 —and Mr. Justice Elkin speaking for the court cited cases in support of the proposition which are ample authority for the admission of the offers of evidence under consideration. Notable amongst these is Shughart v. Moore, 78 Pa. 469, which upon its facts is very much more closely analogous to the present case than Eberle v. Bonafon’s Exr. upon which the defendants’ counsel rely. The second and third assignments of error are sustained.

We quite agree with the learned trial judge that the breach of this collateral agreement, if there was one, would be no defense to the claim for the rent reserved in the lease. Nor do we say that it would be a complete defense to that part of the claim founded on the supplementary agreement of October 22. If, as the defendant alleged, the steam heat furnished in the pipes running through the premises adequately heated the leased premises, the plaintiff suffered no substantial injury from the failure to attach the radiators. If, however, the plaintiff is able to establish the alleged contemporaneous agreement, and its breach, by the quantity and quality of evidence required in such cases, and to convince the jury that in consequence of the breach the premises were not heated at all or were inadequately heated, he will have established a defense to the steam heat claim, complete or pro tanto, depending upon the question of fact last suggested. This is all we deem it necessary to say regarding the fifth and seventh assignments of error. We discover no merit in the first, fourth and sixth assignments. They do not require discussion and are overruled. The manner in which the question involved is stated in the appellant’s paper-book indicates that the counsel took the same view. As they there suggest, the important and controlling question in the case is as to the admissibility of the evidence of the contemporaneous agreement. The refusal of the plaintiff’s request for binding instructions, which is the subject of the eighth assignment of error, was clearly right.

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


author: Rice, P. J.,

text:
    Sipe’s Estate.

      Will — Legacies—Distribution—Per stirpes — Per capita — Analogy of the statute.

    Testatrix after having directed that her estate should be converted into money, gave, devised and bequeathed it as follows: “To my brother B, to the children of E, my sister, to the children of my sister L, and to the children of M, (another brother), share and share alike.” B had no children, E, had seven, L, had five and M, had two. E, L, and M, were deceased. No brother or sister or nephew or niece was excluded. Held, that distribution following the analogy of the statute, should be made per stirpes and not per capita.
    The statute of distribution governs in all cases where there is no will, and where there is one, and the testator’s intention is in doubt, the statute is a safe guide.
    Argued March 15, 1905.
    Appeal, No. 20, March T., 1905, by George B. Sipe et al., from decree of O. C. York Co., dismissing exceptions to auditor’s report in Estate of Catharine Sipe, deceased.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter and Henderson, JJ.
    Affirmed.
    Exceptions to report of Wm. A. Miller, Esq., auditor. Before Bittenger, P. J.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to auditor’s report.

      March 12, 1906:

      Edward Chapin, for appellant.
    — In Pennsylvania each will stands, alone and should be decided upon its own peculiar language. The intention of the testator as drawn from the language of the will governs in all cases: Reck’s App., 78 Pa. 482; Woelpper’s App., 126 Pa. 562; Huber’s App., 80 Pa. 348; Reilly’s Estate, 200 Pa. 288.
    Distribution should have been made per capita: McNeilledge v. Galbraith, 8 S. & R. 43; Hicks’s Est., 134 Pa. 507; Warrington v. Warrington, 2 Hare, 54; Dible’s Est., 81* Pa. 279; Priester’s Est., 23 Pa. Superior Ct. 386; Harris’s Est., 74 Pa. 452.

      J. St. Clair McCall, for appellees.
    — While the court will not hesitate to allow a testatrix to alter the descents provided in the statute, yet, on the other hand, the court will not presume from the fact that the testatrix made a will, that she meant its construction to be at all points inconsistent with the statute. In a word, a per capita construction is not to be forced upon a particular devise, because the devisees under that clause, had they taken under the statute, would have been per stirpes: Risk’s App., 52 Pa. 269; Miller’s Estate, 26 Pa. Superior Ct. 453; Baskin’s App., 3 Pa. 304; Osburn’s App., 104 Pa. 637; Fissel’s Appeal, 27 Pa. 55; Gring’s Appeal, 31 Pa. 292; Minter's Appeal, 40 Pa. 111; Risk’s Appeal, 52 Pa. 269; Harris’s Estate, 74 Pa. 452; Hock’s Estate, 154 Pa. 417; Ashburner’s Estate, 159 Pa. 545; Scott’s Estate, 163 Pa. 165; Miller’s Est., No. 2, 26 Pa. Superior Ct. 453.
   Opinion by

Rice, P. J.,

The testatrix, a widow, died without issue, leaving to survive her Daniel Boeckel, a brother, seven nephews and nieces, children of Elizabeth Sipe, a deceased sister, five nephews and nieces, children of Louisa Sipe, a deceased sister, and a nephew and niece, children of Michael Boeckel, a deceased brother. She directed by her will the place and manner of her burial, the payment of her debts and funeral expenses, and the payment of $50.00 to the church at which she was to be buried for the care of graves, and then directed her executor to convert all her estate into money as soon as possible either by public or private sale; The will then proceeds, “ and after the same hath, been converted as aforesaid I give, devise and bequeath as follows: To my brother Daniel Boeekel, to the children of Elizabeth my sister intermarried with George Sipe and to the children of my sister Louisa intermarried with John Sipe and to the children of Michael Boeekel share and share alike.” The question is whether the distribution should be made per capita or per stirpes. The auditor reported that it should be made per stirpes and his report was confirmed by the court in a well considered opinion rendered by its learned president.

It is reasonable to presume that the testatrix knew the statutory rule of distribution, but the fact that she made a will is not, of itself, ground for any certain inference that she intended to depart therefrom in all particulars, and to distribute her estate per capita, especially as the directions referred to above and the appointment of- an executor show that she had other adequate motives for making a will. “ Whilst we are not to hesitate to allow him (a testator) to alter the descents provided in the statute, we are not, on the other hand, to presume, from the fact that he made a will, that he meant its construction should be at all possible points inconsistent with the statute: ” Risk’s Appeal, 52 Pa. 269.

Great stress is laid on the words “ share and share alike ” as indicative of an intention that the share of each beneficiary under the will should be equal to the share of ever other beneficiary ; in other words, that the share of each nephew and niece should be equal to the share of the only surviving brother of the testatrix. But this expression would be appropriate if the testatrix had in mind a division among classes; at least it is not conclusive of the question whether the distribution was intended to be per stirpes or per capita. In the case just cited the provision of the will that the proceeds of the sale of testator’s real estate, after deducting $1,200, should “ be equally divided between my beloved children, George and Joseph, and the children of my beloved daughter Catharine ” was interpreted to mean a division per stiipes. The word “equally,” said Chief Justice Woodward, “means that the class shall share equally with George and Joseph. This is the grammatical construction of this adverb, for the names George and Joseph and the class are connected by copulatives that apply all the qualifying terms to them alike.” In a casé where the will directed the residue of the estate to be divided “ equally, share and share alike, amongst the children of my brother, Adam Minter, deceased, and the children of my brother Martin G. Minter, deceased, and to my sister Barbara Saval,” a distribution per stirpes was sustained notwithstanding the fact that the sister Barbara died before the death of the testator. After quoting the foregoing provision Chief Justice Lowexe said, “ and by thus expressing himself, he seems to make three classes and three equal shares : ” Minter’s Appeal, 40 Pa. 111. So where the testator directed his residuary estate “to be equally divided between the heirs of the said Henrietta ” — a daughter — “ that may be living at the time of said division and the said Harry G. McCartney,” — a grandson- — “ each to share alike,” it was held that the expression “ each to .share alike ” did not weaken the conclusion that the distribution was to be per stirpes. “ There was to be but one division. It was to divide the fund between the heirs of Henrietta of the one part, and Harry of the other part. In this division each class was to share and share alike. Harry was to have one share, and all the heirs of Henrietta the other share. The division was to be ‘ between ’ the two classes : ” Osburn’s Appeal, 104 Pa. 637. Where the testator bequeathed his estate to his “ daughters Harriet and Maria, and the children and heirs of my sons Benjamin and Charles, to be equally divided between them,” and at the date of the testator’s will his two sons were dead, it was held that distribution should be made per stirpes : Ashburner's Estate, 159 Pa. 545. Judge Peneose, whose opinion was adopted by the Supreme Court, said: “ The effect is not altered by the direction to divide ‘ equally between them,’ since these words are no less appropriate to a division among classes than to division among individuals.” In Scott’s Estate, 163 Pa. 165, the words “ each to take share and share alike ” were construed in the connection in which they were used to mean a distribution per capita, but Justiee Felx, who -wrote the opinion, conceded that the expression “ share and share alike,” standing alone, might refer to a division among classes as well as among individuals. We think the same may be said of the same expression as it is used in the will under construction.

Looking then at the similarity of the form of the gift to that construed in Fissel’s Appeal, 27 Pa. 55, Minter’s Appeal, 40 Pa. 111, Risk’s Appeal, 52 Pa. 269, and Miller’s Est. No. 2, 26 Pa. Superior Ct. 453, observing that the nephews and nieces are not designated by name but are grouped in classes, each class being designated by tbe name of the deceased parent, and bearing-in mind that no brother or sister or nephew or niece is excluded, there is little room for doubting the correctness of the construction put upon the words by the auditor and the court, which resulted in an equal distribution among the classes thus carefully designated. Dible’s Estate, 81* Pa. 279, seems at first blush to give some support to the opposite contention, but as the appellee’s counsel correctly says of that case, the beneficiaries were specifically named without reference to their parents, while in the case at bar each class is designated by reference to the deceased parents of the children, who are the beneficiaries, thus indicating that the children are to take as representatives of their parents. Moreover, that decision, as shown by the opinion of the court, was based on a distinction between the form of the gift then under construction and the one construed in Minter’s Appeal, and does not weaken the authority of the last cited case in any particular. Priester’s Estate, 23 Pa. Superior Ct. 386, differs from this case very materially as will be seen by a comparison of the gifts under construction without any explanatory remarks. In that case also the authority of Minter’s Appeal was conceded. In distinguishing it from the case being decided Judge Henderson said: “ There the bequest was to a group, nob by name, but by description of the person, a class which might be diminished.” This statement is equally appropriate to distinguish this case from Priester’s Estate. It is quite apparent from the context, taken as a whole, that the words “ heirs of Caroline Priester ” were used for the purpose of identification, and not to indicate that the testatrix intended to create a class. In Miller’s Estate, 26 Pa. Superior Ct. 453, the doctrine of Minter’s Appeal, Hiestand v. Meyer, 150 Pa. 501, and Osburn’s Appeal, 104 Pa. 637, was followed and applied in the construction of the will although the result was to bring into the distribution a stranger to the blood of the testator.

The conclusion at which we have arrived is, in our opinion, in accordance with the actual intention of the testatrix; but it is not necessary to be able to assert with absolute certainty that the testatrix intended not to place the children of her deceased brother and sisters on a footing of equality with her sole surviving brother. It is sufficient to say that her will furnishes strong probability that she desired her property to be distributed amongst them as it would be under the statute of distributions. The statute of distributions governs in all cases where there is no will; and where there is one, and the testator’s intention is in doubt, the statute is a safe guide : Ashburner’s Estate, 159 Pa. 545. This doctrine has been recognized in a multitude of cases. In Scott’s Estate it was said that when there is a testamentary gift to one person, and to the children of another person who stand in the same relation to the testator, the donees take per capita. This rule, however, under the English authorities yields to slight indications of a contraiy intent; and in Pennsylvania the contrary intent is inferred in cases of doubtful interpretation where under the intestate laws the distribution would be made per stirpes as in the case of a gift to a son or brother of the testator and to the children or heirs of a deceased son or brother.

The decree is affirmed and appeal dismissed at the costs of the appellant.


text:
    Sipe’s Estate
    (No. 2).
    March 12, 1906:
   Opinion by

Rice, P. J.,

The questions raised upon these several appeals are precisely the same as those considered in the appeal of George B. Sipe, ante, p. 145. For the reasons there given the decree is affirmed and the appeals dismissed at the costs of the several appellants therein.


text:
    Shadle’s Estate
    (No. 1).

      Evidence — Witness—Party dead — Cross-examination—Relevancy of testimony — Decedents’ estates.

    Where a surviving party to a contract has been called for cross-examination as to matters occurring in the lifetime of the decedent, he becomes a fully competent witness as to other relevant matters, whether occurring before or after the death of the decedent; and this is the case although the cross-examination as to matters occurring in the decedent’s lifetime was neither very extended nor very important.
    The Act of May 23, 1887, P. L. 158, does not change the common-law rule that a party calling and examining generally an incompetent witness, and having the benefit of his testimony, cannot object to his competency when called by the other side as to other relevant matters.
    If the witness is called for cross-examination, he may testify generally as to other relevant matters, although such matters were not touched upon in his cross-examination.
    Where an administrator is sought to be surcharged by a guardian, and the administrator has been called for cross-examination as to certain matters occurring in the lifetime of the decedent, he may testify on his own behalf that he took his father, the decedent, and one of the minors to live with him, and that the father promised that he would pay board for himself and the minor; and this is the case although the subject of board money was not referred to' in the cross-examination of the administrator.
    In such a case if the administrator’s testimony is supported by the testimony of two other witnesses as to declarations made to them by the decedent, a finding by an auditor confirmed by the court below, that a contract to pay board was made, will not be disturbed by the appellate court.
    A contract to pay for services or boarding may be express and binding, although the amount is not defined. If the sum be not expressed, it will be implied to be the value.
    An appellate court will not disturb a finding of fact by an auditor approved by the orphans’ court, except in cases of fraud, clear mistake or manifest lack of due consideration, and especially is this true where the finding is based on direct oral testimony, and is not a mere inference from other facts.
    Argued March 15, 1905.
    Appeal, No. 30, March T., 1905, by David Snyder, Guardian, from decree of O. C. Dauphin Co., overruling exceptions to master’s report in Estate of Gideon Shadle, deceased.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter and Henderson, JJ.
    Affirmed.
    Exceptions to report of Eugene Snyder, Esq., auditor. Before Jacobs, J.
    The facts are stated in the opinion of the Superior Court.

      Jacobs, J., in delivering an opinion on the exceptions, found as to the fourth exception as follows:
    4. The accountant charged himself with certain notes of Frank Shadle, deceased, held by Gideon Shadle, together with interest 'thereon, amounting in all to $874.84, upon which he claims commissions. It appears that on December 1, 1893, F. D. Harner, administrator of the estate of Frank Shadle, deceased, paid to Gideon Shadle the sum of $442.34, taking a receipt therefor, which was signed by Gideon Shadle and was offered in evidence before the auditor. The receipt expressly states that said payment was “ to be a credit upon the notes which I and the estate of my wife, Sarah Shadle, deceased, hold against the estate of the said Franklin Shadle.” The auditor, finding that the accountant here had, after the death of his father, taken out letters of administration on Sarah Shadle’s estate and had charged himself with the full amount of the Sarah Shadle note and claimed credit for the same as “ not collectible,” reached the conclusion that the full amount of this payment should be applied upon the Gideon Shadle notes, and he, therefore, reduced the amount of the same with interest to the date of filing the account to $204.26 and allowed the accountant a commission of five per cent thereon, amounting to $10.21. The receipt clearly shows that the parties, at the time the payment was made, agreed that it should be appropriated upon all the notes, to wit: the notes of Gideon Shadle and that of Sarah Shadle. This they had a perfect right to do, and we see no reason why their express appropriation of the payment should now be disturbed. No credit appears upon the notes of Gideon Shadle, nor does it appear that any was indorsed upon that of Sarah Shadle. This probably accounts for the fact that the accountant, in his account in the Sarah Shadle estate, charged himself with the full amount of the Sarah Shadle note, with interest. He could not by so doing change the appropriation which had been expressly made by the parties at the time of the payment. It is true that the receipt does not direct specifically the amount to be appropriated to each note. But, in the absence of such express direction, we think the fair inference is that the appropriation was intended to be made proportionately to each note, including principal and interest to the date of payment.

      The auditor allowed to the accountant five per cent commissions upon the amount of the two Franklin Shadle notes, after deducting the payment above referred to. The balance due on these notes has not been paid to the accountant, but the notes are held, as we understand, 'by the administrator and should be set off in the distribution against the shares of Frank Shadle’s children. Under these circumstances we do not think the accountant is entitled to full commissions upon the balance due on the notes as we have directed it to be found, and we think the commission allowed by him, to wit: $10.21, is sufficient.
    This conclusion would lead us to overrule the exception but for the fact that this balance must be deducted from the shares of the children of Franklin Shadle in the distribution. The auditor seems to have overlooked this deduction in his report and we call attention to it now, so that when the matter is referred back the Franklin Shadle notes, as well as the note of S. P. Shadle, may be set off against-the proper distributive shares.
    The exception is sustained to this extent: that the auditor is directed to deduct from the notes held by Gideon Shadle against the estate of Franklin Shadle only such proportion of the payment made on December 1, 1893, as the amount of said notes with interest to that date bears to the aggregate amount of said notes and interest and the note of Sarah Shadle with interest to the same date.

      Errors assigned were in overruling exceptions to auditor’s report.

      W. M. Hargest, of Hargest & Hargest, with him Michael E. Stroup, for appellant. —
    Where the claim is made for services or boarding, which are presumed to be paid periodically, the presumption of periodical payments must be rebutted by positive testimony, even if the contract has been proven: Coulston’s Estate, 161 Pa. 151; McConnell’s App., 97 Pa. 31; Conaughton’s Est., 12 Pa. C. C. Rep. 590; Bash v. Bash, 9 Pa. 260; Leidig v. Coover, 47 Pa. 584; Murphy v. Corrigan, 161 Pa. 59; Whitmer’s Estate, 19 Pa. C. C. Rep. 533.
    The case at bar is not as strong in its facts as the cases of Ulrich v. Arnold, 120 Pa. 170; or Zimmerman v. Zimmerman, 129 Pa. 229, in both of which the Supreme Court held the testimony insufficient to establish such a claim.
    March 12, 1906:
    Stale claims against the decedent’s estate can only be allowed by evidence of the clearest and most unexceptional character: McQuinn’s Estate, 48 Legal Int. 184; Weaver’s Est., 182 Pa. 349.

      Edwin W. Jackson, for appellee.
    — It is submitted that this testimony, and the circumstances of the case, bring the claim fully within the ruling of Miller’s Appeal, 100 Pa. 568.
    The testimony of S. P. Shadle, the claimant, establishes an express contract.
   Opinion by

Rice, P. J.,

Gideon Shadle, the decedent, left to survive him S. P. Shadle, a son, and three minor children of a deceased son, of whom David Snyder, the appellant, was guardian. S. P. Shadle was appointed administrator, and to his first and final account numerous exceptions were filed by the guardian. At the first hearing before the auditor appointed to pass upon the exceptions, “ and make distribution of the balance in the hands of the administrator to those entitled thereto,” S. P. Shadle was called as if under cross-examination and testified at length in answer to questions put by counsel for the exceptant concerning the items of the account and the matters referred to in the exceptions. Some of these exceptions were as to surcharges which the exceptant claimed should be made. At a later hearing he was again called and cross-examined by the exceptant’s counsel as to these matters. At a still later hearing the accountant testified, under objections by the exceptant’s counsel, in support of an offer made by the accountant’s counsel which we quote: “ I propose by the witness to prove that after the death of his mother, his father, who had taken Gideon Shadle, Jr., to raise, came to his hotel, bringing with him Gideon, Jr., to board with him, and that at that time a contract was made between them for the payment of their boarding; for the purpose of establishing an additional claim by the accountant against the estate.” The auditor held that the accountant was not a competent witness as to this matter and, therefore, when he made up his report, rejected this testimony from consideration, but concluded that the testimony of other witnesses was sufficient to establish the claim. The court overruled the exception to the auditor’s conclusion of fact, but held that inasmuch as the exceptant had called the accountant for cross-examination the latter became a fully competent witness in his own behalf as to all relevant matters, and that this was a relevant matter. This is the first question to be considered.

We are not prepared to decide that the accountant would not have been competent to testify in his own behalf as to .matters occurring in the lifetime of the decedent, even if the party calling him for cross-examination had confined his examination strictly to matters occuring after the death of the decedent. But it is unnecessary to discuss, or express a decided opinion upon, that question; for while the cross-examination, in the main, related to the latter, yet it was not strictly confined thereto, but touched on some matters occurring in decedent’s lifetime. His cross-examination as to these matters was not very extended nor very important, it is true, but under all the authorities he thereby became a fully competent witness as to other relevant matters, whether occurring before or after the death of the decedent: Corson’s Est., 137 Pa. 160; Boyd v. Conshohocken Worsted Mills, 149 Pa. 363; Hambleton’s Est., 166 Pa. 500; Danley v. Danley, 179 Pa. 170; Watkins v. Hughes, 206 Pa. 526; Mothes’s Est., 29 Pa. Superior Ct. 462.

Was this claim a relevant matter within the meaning of the statute ? Prior to the enabling evidence statutes it was held in Pennsylvania that if a witness, disqualified by reason of interest, was called and examined generally by a party, it did not lie in the mouth of that party to object to him as incompetent when called by his adversary to testify to other facts: Turner v. Waterson, 4 W. & S. 171; Stockton v. Demuth, 7 Watts. 39. In Floyd v. Bovard, 6 W. & S. 75, Chief Justice Gibson commented on the English practice under which the new matter might be brought out under cross-examination, and after showing that under the practice here the cross-examination of a witness must be confined to the subject-matter of his direct testimony, concluded, both upon reason and authority, that the party first calling him thereby rebutted the presumption arising from interest and made him a competent witness for the adverse party. The principle was carried still further in Patterson v. Wallace, 44 Pa. 88, where it was held that an objection to a witness called by one party, if known to the opposite party, must be made before he is examined’; if he is permitted to testify without objection, his competency cannot afterwards be objected to when recalled for examination, at any subsequent stage of the trial. Substantially the same was held in Dean v. Warnock, 98 Pa. 565. The act of 1865 was a departure from the common law, in that it enabled a party to compel any adverse party, etc., “ to testify, as a witness in his behalf, in the same manner and subject to the same rules as other witnesses,” but the common-law rule above referred to was applied in its construction. In Seip v. Storch, 52 Pa. 210, decided in, 1866, Justice Read, speaking for the court, referred to the rule established by these earlier cases, and then said: “ In construing, therefore, the remedial Act of March 27, 1865, P. L. 38, we must apply the well-established principle, that, if a party puts an incompetent witness on the stand, by exercising any power which he possesses over him, he makes him an entirely competent witness in the cause, to be used as such by either party.” To the same effect is Bennett v. Williams, 57 Pa. 404. Following this ruling it was held in Forrester v. Torrence, Adm. of Kline, 64 Pa. 29, that where the plaintiff examined one of the defendants as a witness at an arbitration, this rendered her competent on her own behalf on the trial of the same case in court. Sharswood, J., said: “There are good reasons for thus holding; for by calling and examining the witness, the plaintiff fully accredited her as worthy to be believed. Having done so once in the cause, he ought not to be allowed to object to her afterwards. Such a course would be likely to mislead his opponent, to induce him to believe that she would be called again, and to make his preparations on that expectation.” It is true it was decided in Alcorn’s Exr. v. Cook, 101 Pa. 209, that the provisions of the act of 1865 had no application to suits by and against administrators, and in Tinstman v. Croushore, 104 Pa. 192, that the right to cross-examine an adversary, conferred by the second section of the act of 1869, did not extend to such suits, but in neither of these cases did the court question that at common law a party calling and examining generally an incompetent witness and having the benefit of his testimony could not object to Ms competency when called by the other side as to other relevant matters. The Act of May 23, 1887, P. L. 158, is not a step backward; it is an advance in the line of competency and the removal of disqualifications founded on interest or policy : Smith v. Hay, 152 Pa. 377. In a very recent case Justice Brown said that the act had been uniformly interpreted “ in the light of the literal meaning of its words ” and that under its provisions “ competency of witnesses in civil cases is the rule and incompetency the exception : ” Pattison v. Cobb, 212 Pa. 572. The courts have no authority to construe the act contrary to its plain provisions, and thus add to the exceptions to the general rule of competency, in the vain effort to put the parties in interest in every litigation that maj’- arise upon an equal footing: Foringer v. Sisson, 14 Pa. Superior Ct. 266; Smith v. Hay, 152 Pa. 377. The plea that where death has closed the mouth of one party to a thing or contract in action the law will preserve equality by excluding the living party thereto from testifying regarding it, is good only so far as it is sustained by the express words of the act. Under clause “ e ” of sec. 5, S. P. Shadle would not have been competent to testify to the alleged contract between him and his deceased father; but, exercising the right which the 7th section gave him, the only other party interested in the proceeding called him as if under cross-examination. Having thus obtained the benefit of the accountant’s testimony, so far as it was favorable to him, without being concluded by it so far as it was unfavorable, we fail to see what principle of natural justice, or policy of the' law, would be offended by permitting him to testify in his own behalf as to other facts relevant and material in the audit then pending. It would not have been regarded as in contravention of the principles of the common law, notwithstanding all the strictness with which it held interest as disqualifying to testify, and, as Justice McCollum said, the act of 1887 “ is not a step backward.” Its plain and unambiguous language is “but such person so cross-examined shall become thereby a fully competent witness for the other party as to all relevant matters, whether or not these matters were touched upon in his cross-examination.” Relevant to what ? Clearly it is not essential that his testimony relate specifically to the subject-matter of his cross-examination; the words of the act settle that question. But it is argued that as the cross-examination of the accountant related solely to the issue made by the account and the exceptions, therefore, his testimony in his own behalf should have been confined to the same issue. In considering this proposition it is to be observed that the only parties interested in the final result of the audit were the accountant and the minors of whom the exceptant was the guardian, and that while under the terms of the auditor's appointment the ascertainment of the assets of the estate in tne hands of the accountant was necessarily involved, the ultimate purpose of the audit was the distribution of them to and among the persons entitled. The claim of the accountant was clearly a relevant matter in the proceeding. The fact that he did not allude to it in. his account, and that it was not “ touched upon ” when he was cross-examined by the exceptant, cannot be made the ground for excluding his testimony regarding it, without detracting from the words of the statute, “ a fully competent witness as to all relevant matters, whether or not these matters were touched upon in his cross-examination.” We conclude, therefore, that he was a competent witness as to this matter.

The testimony of the accountant was to the effect that after the death of his mother his father, the decedent, came to live with him at his hotel, bringing with him a grandson, toward whom he stood in loco parentis, and that they continued to board with him until the decedent’s death. As to the contract between them he testified : “ He said he would pay me for the boarding, as there was enough left, and that I should not do this for nothing, and that he would pay me for boarding them.” “ Q. By them he meant who ? A. Why, my father and Gideon, Jr.” On cross-examination he testified : “ Q. Your father, Mr. Shadle, told you that he would pay you for the boarding of himself and Gideon? A. Yes, sir. Q. Did he specify the amount which he would pay ? A. No. Q. He seemed satisfied that there was enough left to pay you ? A. He said you need not to keep me for nothing, you need not to keep us for nothing, I have got so much left that I will pay; he says you need not keep me for nothing, and he says, I will pay you.” This testimony was corroborated by the testimony of Jonas Garman and L. H. Zeigler as to declarations which the decedent made to them, and it was not contradicted. Claims of this character are to be rigidly scrutinized under all circumstances, and especially under such circumstances as were developed in this case. Nevertheless, there is no valid principle upon which it can be declared that under no circumstances are they to be allowed. The rule upon the subject was thus laid down in Miller’s Appeal, 100 Pa. 568: “ Between parent and child the rule is, that there can be no recovery for' services, boarding, or the like, in the absence of an express contract to pay therefor. The degree of proof to establish it cannot be the same in all cases. . . . The question always is, whether the parties contemplated payment and dealt with each other as debtor and creditor. A son who takes his decrepit parents into his house and supports them, is presumed to do so from the promptings of natural affection; no contract is implied. But if the father, before they go and afterward, repeatedly declares that he was to pay for their board, such declarations are evidence, and with the circumstances may be so direct and strong as to compel belief that he expressly agreed to pay for it. Loose declarations made to the son or others will not answer. That which may be only the expression of an intention to compensate is not evidence of an agreement to compensate. If he intended to pay, and often said so to others, he was not bound. It must appear that he proposed to assume a legal obligation, capable of being enforced against him.” It was further decided in the same case that a contract to pay for services or boarding may be express and binding, withoutthe terms being defined. “ The gist is an actual agreement to pay, and if the sum be, not expressed it will be implied to be the value.” It is unnecessary to cite other cases upon the subject, or to discuss those cases bearing more particularly upon the question of the wages of domestic servants. Taken as a whole the testimony, if believed, was sufficient to overcome the presumption that the boarding of the decedent and his grandson and his nurse was furnished gratuitously, or from promptings of filial affection, or merely from expectation of a legacy, and to support-a finding that it was furnished pursuant to an express contract. The general rule is, that an appellate court will not disturb a finding of fact by an. auditor, approved by the orphans’ court, except in cases of fraud, clear mistake or manifest lack of due consideration, and especially is this true where the finding is based on direct oral testimony, and is not a mere inference from other facts. We see no reason to depart from that rule in this case, or to hold that the finding was clearly wrong.

The question raised by the fifth assignment of error was fully considered by the learned judge of the orphans’ court in that part of his opinion which relates to the fourth exception of the accountant to the auditor’s report. It involves a question of fact, and we are of opinion that this was correctly determined by the court. All that need be said concerning it is contained in that portion of the learned judge’s opinion above referred to.

The decree is affirmed and the appeal dismissed, the costs of the appeal to be paid by David Snyder, guardian.


text:
    Shadle’s Estate
    (No. 2).

      Decedents’ estates — Executors and, administrators — Costs:
    Where an auditor is appointed in pursuance of a contest raised by a guardian against an administrator’s account, it is no ground for putting the costs upon the guardian merely because the latter refused in good faith the accountant’s offer to compromise, and as a result of such refusal the minors got less under the auditor’s report than they would have secured under the compromise.
    Costs will not be imposed upon an accountant where they were not incurred solely by his dereliction.
    The orphans’ court being a court of equity is vested with a wide discretion upon the subject of the imposition of costs, and its decrees upon the subject will not be disturbed except for clear error.
    Argued March 15, 1905.
    Appeal, No. 32, March T., 1905, by S. P..Shadle, Administrator, from decree of O. C. Dauphin Co., overruling exceptions to auditor’s report in Estate of Gideon Shadle, deceased.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter and Henderson, JJ.
    Affirmed.
    Exceptions to report of Eugene Snyder, Esq., auditor. Before Jacobs, J.

      March 12, 1906:
    The facts appear by the opinion of the Superior Court and from the report of Shadle’s Estate (No. 1) ante, p. 151.

      Error assigned was the decree of the court.

      Edwin W. Jackson, with him Lewis M. Neiffer, for appellant.

      W. M. Hargest, of Hargest & Hargest, with him Michael E. Stroup, for appellee, cited:
    Moyer’s Est., 1 Pear. 407; Fieser’s Est., 15 Pa. Superior Ct. 447; Witman’s App., 28 Pa. 376; Norris’s App., 71 Pa. 106; Tryon v. Miller, 1 Whart. 11; Arthur v. James, 28 Pa. 236; Bascom v. Danville Stove and Mfg. Co., 182 Pa. 427; Stephen’s Digest of Law of Evidence, 114; Home Ins. Co. v. Balt. Warehouse Co., 93 U. S. 527.
   Opinion by

Rice, P. J.,

This appeal is from the same decree we have considered in the appeal of David Snyder, guardian, in which we herewith file an opinion. The accountant contended that the costs of the audit should be paid by the exceptant personally. The reason given is, as stated in the assignment of error, that the evidence shows that under the offer of the accountant to compromise in order to avoid costs-of an audit before an auditor was appointed, the minor children would have gotten considerable more money than they now get under.- the auditor’s report. We do not regard this of itself as sufficient ground for putting the costs upon the guardian. So far as appears his refusal of the offer of compromise was made in good faith, and he ought not to be punished for his mistake, if mistake there was, merely because it turned out upon final hearing that the acceptance of the offer would have brought 'his wards more money. Nor, on the other hand, are we willing to accede to the proposition that there was error in not imposing all the costs upon the accountant, for it cannot be successfully asserted that they were incurred solely by reason of his dereliction. The orphans’ court,, being a court of equity, is vested with a wide discretion upon the subject of the imposition of costs, and its decrees upon the subject will not be disturbed except for clear error. Under all the circumstances we are of opinion that the court wisely exercised its discretion in imposing the costs upon the estate.

The decree is affirmed and the appeal dismissed, the costs 'of the appeal to be paid by S. P. Shadle.


text:
    Schomacker Piano Forte Manufacturing Company v. Yankee Dauntless Club, Appellant.

      Practice, C. P. — Trial—Instructions—Points for charge.

    A party is entitled to a olear and distinct statement of the law in answer to every point properly drawn that is material and applicable to the case, and warranted by the facts and the evidence, if not fully covered in the general charge.
    Argued Oct. 4, 1905.
    Appeal, No. 241, Oct. T., 1904, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1899, No. 800, on verdict for plaintiff in case of Schomacker Pianio Forte Manufacturing Company v. Yankee Dauntless Club.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit for the price of a piano. Before Finletter, P. J.
    The court charged in part as follows:
    The plaintiff claims to recover in this case $324 for goods sold and delivered. I may say, at the outset, that unless you are satisfied from all the testimony in the case that there was a purchase and sale, the plaintiff cannot recover. So that [this comes down simply to what occurred at the time the whole of the committee were at the plaintiff’s store.] [11] From the testimony in relation to what occurred then you must be satisfied that the committee agreed to purchase the piano and that the plaintiff agreed to sell it. There is no question about' the delivery, because the piano was delivered. Everything that has been said in this case is evidence and important only so far as it calls the attention of' the jury to what occurred at that particular time and to what was the result of the interview between the committee and the president of the plaintiff company. If the papers in evidence do not tend to explain that, they are useless as evidence in this case, because, as I have said, [the whole of this case depends upon what occurred at the particular time that the committee were there and discussed this matter.] [12] Of course, any evidence that has a bearing upon these two questions — the question of purchase and the question of sale — I say any evidence in this case that bears upon that is proper for consideration of the jury.
    The jury will understand, however, that as the defendant is a corporation, it cannot in any event be made responsible for what any of its members has done in relation to this matter. But [it is admitted that the committee had authority and were appointed by the defendant to make this particular purchase], [13] and there fore'there can be no question of the liability of the defendant corporation, if the jury are satisfied that there was a purchase and a sale and a delivery.
    Defendant presented these points :
    1. The defendant being a chartered corporation, and sued as such, could not be bound by a contract made, or attempted to be made, by any individual thereof, although in the name of such corporation, unless by a resolution of its board of directors or other proper authority he had been directed to act in that behalf ; but no such agency could be inferred. Answer : Declined. [1]
    2. Mere negotiations, with a view to enter into a contract of sale, taking bids, setting aside an article for future' consideration or more mature deliberation, do not create an obligation of contract to purchase such article. Answer: Declined. [2]
    3. The letter of January 8, 1900, reading as follows :
    “ Philadelphia, January 8,1900.
    “ Me. James A. Robb :
    “ Dear Sir: The piano committee will meet on Monday next, January J.5, at nine o’clock sharp, at Sigel’s, Seventh and Moore streets, to proceed uptown to do the purchasing act. Now, Uncle Jim; please do me the favor to be on hand and go with us. If you can’t go down to Sigel’s, meet us Eleventh and Chestnut at 9: 30. You know this is no trifling matter, and I would be pleased if I could get the full committee to serve. Please do this for me, Jim. Yours,
    “W. H. Melvin.”
    addressed by one of a committee consisting of five persons, members of .the corporation, to another member thereof, could not be construed as delegating the authority vested in the entire committee to the individual addressed, but rather by its express terms and language negatives the idea of any such delegated authority. Answer : Declined. [3]
    4. Where a corporation delegates to a committee consisting of several members thereof power and authority to make a contract for the corporation, the corporation cannot be held unless at least a majority of such committee concurs in the making of said contract. Answer : Declined. [4]
    5. If the jury believe from the evidence that a majority of the committee to whom was delegated the authority to purchase a piano for the defendant corporation, repudiated the alleged contract sought to be established in the case as the contract of Mr. Robb, upon the part of the corporation before the piano was delivered, or after its delivery, then there was no contract binding the corporation, and there can be no recovery. Answer: Declined. [5]
    6. If the jury believe from the evidence that the action of one member of the piano committee of five was not adopted and ratified by that committee or by the corporation defendant, then the plaintiff is not entitled to recover. Answer: Declined. [6]
    7. If the jury find from the evidence that the plaintiff proved by its witness Gray that it delivered the piano to the defendant corporation solely upon the responsibility of Mr. Robb, and that Mr. Robb was not individually authorized to contract for the defendant corporation, but was one of a committee of five of said defendant corporation,- and had no authority to act except through said committee ; such being the evidence, the plaintiff is not entitled to recover in this action, and the verdict must be for the defendant. Answer : Declined. [7]
    8. Plaintiff itself having proven that the agency was in the committee, it became the duty of the plaintiff before it acted to ascertain whether or not a majority of the committee concurred in the action of Mr. Robb, and if the jury find that the plaintiff knew that the committee did not so concur, the verdict must be for the defendant. Answer: Declined. [8]
    March 12, 1906:
    9. That under all the evidence in the case the verdict must be for the defendant. Answer : Declined. [9]
    Verdict and judgment for plaintiff for $324. Defendant appealed.

      Errors assigned were (1-9, 11, 12-14) above instructions, quoting them ; (10) the charge as a whole, quoting it; (13) in failing to charge the jury specifically as to the legal effect of the letter dated January 8, 1900.

      Joseph B. Fahy and Howard B. Lewis, for appellants.

      Horn R. Kneass, for appellee.
   Opinion by

Rice, P. J.,

The defendant, an incorporated social club, appointed a committee of five to select and purchase a piano. This action of assumpsit was brought to recover the price of a piano alleged to have been purchased by the committee and delivered to the defendant’s clubhouse. The matters assigned for error are principally the denial of the defendant’s points. The questions in the case will appear upon a brief review of the conflicting testimony.

On December 18, 1899, according to the testimony of Henry W. Gray, the president of the plaintiff company, Mr. Melvin, chairman of the committee, called at the plaintiff’s place of business and selected a piano and, having agreed to the price, directed Mr. Gray to hold it until the defendant was ready-to have it delivered, whereupon it was tagged and set aside. Later the plaintiff received word that the club was not ready to receive, the piano, and that Melvin would bring a few members of the committee or of the club to look at it. On the morning of the day appointed, January 15, 1900, Mr. Robb, a member of the committee, appeared. After waiting some time for the other members, looking at the piano, and expressing satisfaction with it, he said to Graj'-: “ Well, théy don’t come. They are not here and I am tired of waiting and we will settle this matter. We want the piano. Send it home.” As evidence of his authority Robb showed the letter quoted in the third assignment of error. This was ample notice to the plaintiff that Robb individually did not have authority to bind the defendant. Besides that, being a special agent, and known to be such by the plaintiff, it was incumbent upon the latter to ascertain the scope of his authority. Nevertheless, the piano was .put in readiness at once, and was delivered at defendant’s clubhouse before the day closed. The foregoing is the plaintiff’s version, in substance, of what took place before the piano was delivered. The version given by the defendant’s witnesses is, that Robb said to Gray that if he would send the piano to the clubhouse, he, Robb, would pay the cartage back and forth if it was not accepted, and that this was the entire transaction between them.

In the afternoon of the same day the four other members of the committee, Melvin, the chairman, being one of the four, appeared at the plaintiff’s place of business. The testimony as to what occurred at this meeting is confused and contradictory. According to the most intelligible testimony on the part of the plaintiff, they were informed by Mr. Gray that the piano that had been selected, had been sent to the clubhouse, but he could show them one like it; he did so, and “ they said they liked the piano and were very much pleased, and it was all right.” On the other hand, the defendant’s witnesses testified, that Gray first said Robb had bought the piano and it had been delivered; that afterwards he corrected himself and said it was on the elevator, and had it brought back and exhibited to them; that Melvin then said: “ As long as it has not been delivered, don’t you deliver it until we have a consultation. We want to spend this money judiciously;” that the four members of the committee went out, and after consultation he returned and told Gray that thejr had decided not to take the piano.

Under any view of the evidence it is plain that Robb individually had no authority to buy the piano and bind the defendant for the price, and, therefore, in the transaction in which he participated, no obligation on the part of the defendant to take and pay for it was created. It is .equally plain, if the testimony of the defendant’s witnesses be accepted, that no such obligation was created by what was said and done in the afternoon, when the four members of the committee were present. And even if the testimony of the plaintiff’s witnesses as to that interview be accepted, it would not, standing, alone, establish a contract of sale complete in all its terms, including price. However, bearing in mind that it was the province of the jury to determine the credibility of the witnesses and the meaning of the words used in the transaction, we are not prepared to say that a finding by the jury that the four members of the committee approved and ratified the previous action of Robb would have been wholly unwarranted. Therefore, it was not a case for binding instructions in favor of the defendant. Nevertheless, it was important for the jury to determine what Robb had done, and what representations were made to the committee as to what he had done. For if the jury found that he had simply ordered the piano to be sent to the clubhouse on approval, and that the plaintiff untruly represented that he had bought outright the piano exhibited to his fellow committeemen in the afternoon, thus conveying the impression to them that he had formed a conclusive judgment upon the question committed to their discretion, this would have had a very important bearing upon the question of the defendant’s liability. In short, if the action of these four members of the committee was induced by misrepresentaion of material facts on the part of the plaintiff, and was promptly disaffirmed, the defendant would not be bound.

The defendant’s first point for charge, treating it as a statement of an abstract proposition was too broad. The fifth ignored the evidence tending to show that the majority of the committee at first approved the action of Robb. The seventh was so worded as, in effect, to be a request for binding instructions. It may not have been so intended, but a jury might have so understood it. The ninth was an explicit request for binding instructions. The court was right in refusing all of these points. But it will be seen from the foregoing recital and analysis of the testimony that the other points submitted by the defendant embodied, or called for tbe application of legal principles pertinent to the case. No reason' has been assigned for declining them except that they were sufficiently answered in the general charge. We recognize the rule that an appellant “ has no cause of complaint if the charge contained nothing erroneous and omitted nothing favorable to him which the points properly called for: ” Kroegher v. McConway & Sorley Co., 149 Pa. 444; Carey v. Buckley, 192 Pa. 276. But we cannot agree that the case was brought within the rule by the instructions in the general charge to the effect that the whole case depended upon what occurred at the time the whole of the committee were at the store and discussed the matter. Of course, the broad question was whether what was said and done on the afternoon of January 15, when four members of the committee were present, was the consummation of a valid purchase and sale of the piano, but this was so intimately connected with what had preceded that the distinct affirmation of the defendant’s points last referred to would have aided the jury in arriving- at a correct conclusion upon that question. There was other testimony, which we have not alluded to, which made it pertinent and proper that the jury should be instructed with regard to the matters referred to in these points. The rule is that a party is entitled to a clear and distinct statement of the law in answer to eveiy point properly drawn that is material and applicable to the case, and warranted by the facts and the evidence, if not fully covered in the general charge: Sommer v. Gilmore, 160 Pa. 129; Whitmire v. Montgomery, 165 Pa. 253; Jones v. Greenfield, 25 Pa. Superior Ct. 315. Applying this rule we are constrained to hold that the case must be sent back for retrial.

The thirteenth assignment is a substantial reiteration of the third and is dismissed for that reason. The first, fifth, seventh and ninth are overruled for the reasons already suggested. The fourteenth is an excessively fastidious criticism of a single sentence of the charge and is without merit. The other assignments are sustained.

Judgment reversed and venire facias de novo awarded.