text:
    Frank P. Miller Paper Company, Appellant, v. York Coated Paper Company.

      Corporations — Manufacturing corporations — Directors—Debts in excess of paid-up capital — Remedy—Acts of April 29, 1874, sec. 39, cl. 6, P. L. 73, and July 18,1863, secs. 41 and j2, P. L. (1864) 1102, and April 4,1865, P. L. 60.
    The provision of the general corporation Act of April 29,1874, sec. 39, cl. 6, P. L. 73, making directors liable for corporate debts in excess of the capital stock actually paid in, is enforceable only in the manner provided by secs. 41 and 42 of the Act of July 18, 1863, P. L. (1864) 1102, which requires a creditor before proceeding against the directors to first obtain a judgment against the corporation and issue execution thereon. These sections of the act of July 18, 1863, are not supplied by anything contained in the act of April 29, 1874, and are not repealed by that act. The fact that a corporation has been adjudicated a bankrupt does not dispense with the necessity of the preliminary proceeding against it, as provided by the act of 1863.
    Argued March 13, 1907.
    Appeal, No. 16, March T., 1907, by plaintiff, from decree of C. P. York Co., Aug. T., 1906, No. 3, dismissing bill in equity in case of Frank P. Miller Paper Company v. the York Coated Paper Company et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady^ Head and Beaver, JJ.
    Affirmed.
    Bill in equity to enforce liability of directors for corporate debts in excess of capital of a corporation actually paid in.
    Wanner, P. J., filed the following opinion:
    Plaintiff’s bill seeks to hold the directors of the York Coated Paper Company individually liable, under the provisions of the Act of April 29, 1871, P. L. 73, in the sum of $1,587, for an excess of corporate indebtedness created by them, over and above the amount of the paid-in capital stock of the said company. It alleges the incorporation of the company, the election of the directors named as defendants in the bill, and an increase of the corporate indebtedness by them, to the amount above named, in excess of the capital stock of said company then actually paid in. But it gives no details as to the specific character of the indebtedness created, or as to the manner in which it was done by said defendant directors.
    The defendants demur to the insufficiency of the bill as filed, and contend that since the passage of the Act of February 9, 1901, P. L. 3, no personal liability attaches to directors of a corporation for increasing its indebtedness beyond the amount of its paid-up capital stock, provided that it is done in the manner authorized by said act.
    Section first thereof provides that the capital stock or indebtedness, or both, of any corporation “may with the consent of the persons or bodies corporate holding the larger amount in value of its stock be increased to such amount in the aggregate of each, as it shall deem necessary to accomplish and carry on, and enlarge the business and purposes of the corporation.” It further provides that such increase may be made at once, or from time to time as the stockholders of the company may determine.
    Sections second and third of the act provide for the submission of the question of such increase by the directors to the stockholders, and how it shall be acted upon by the latter, etc.
    Section fourth provides that “ nothing in this act contained shall be construed as compelling resort to the process herein provided, in the case of indebtedness contracted in the usual course of corporation business. All acts or parts of acts inconsistent with the provisions of this act are hereby repealed.”
    It was contended by plaintiff’s counsel that this act only refers to an increase of the capital stock or of the bonded indebtedness of a corporation. But both the general language of section one, and the specific terms of section four of the act, clearly show that such was not the intent of the lawmakers. The former sections provided a specific method of procedure for authorizing an increase of capital stock, or of the bonded or other forms of general indebtedness of the corporation, while section four expressly provides that for such increased indebtedness contracted in the usual course of corporate business, no resort to such process is necessary. The act of 1901, therefore, operates as a repeal of the general language of the act of 1874, forbidding any kind of an increase of the indebtedness of a corporation beyond the amount of its paid-in capital stock.
    It was held in Commonwealth v. Buffalo & Susquehanna Railroad Company, 10 Pa. Dist. Rep. 363, that the act of February 9,1901, extinguishes the proportion which the authorized issue of indebtedness must bear to the amount of paid-up capital stock, and restricts an increase of the stock or bonds, or both, of a corporation, by two things only, the consent of the stockholders of the larger amount in value, and the business necessities of the company, to be determined by the body having authority to issue stock or create corporate indebtedness.
    It is, therefore, apparent that in any attempt to hold the directors of a corporation individually liable for an increase of the corporate indebtedness, since the passage of the act of 1901, it is necessary that the bill should contain sufficiently specific allegations, as to the nature and extent of the indebtedness, and the manner of its creation, to clearly indicate that the proceedings were not authorized by the act of 1901, and fell within the penal provisions of the act of 1874, for a violation of the law. An inspection of plaintiff’s bill filed in this case discloses only such a general allegation of increase of corporate indebtedness, since the passage of the act of 1901, as may have been made in entire accordance with the requirements of the said act on that subject. From a reading of the entire bill it cannot be concluded that the law as it now exists on the subject has been violated by the defendant directors of the York Coated Paper Company.
    October 7, 1907:
    It is also contended on the part of the defendants that the plaintiff, under the provisions of the Act of July 18, 1868, P. L. (1864) 1102, secs. 41 and 42, should have first proceeded to judgment and execution against the corporation itself with a return of the latter unsatisfied, before it had a right to file its bill in equity to hold the directors responsible for the alleged increase of corporate indebtedness.
    An inspection of the act shows that to be the method prescribed therein, and as the provisions of said act are extended to York county by the Act of April 4, 1865, P. L. 60, a noncompliance with its provisions in that regard makes the plaintiff’s bill demurrable: Green v. Whitehead, 5 Pa. Dist. Rep. 612 ; Wagner v. Corcoran, 2 Pa. Dist. Rep. 440.
    In the last cited case it was held that the act of April 29, 1874, did not either expressly or by implication repeal secs. 41 arid 42 of the act of July 18,1863, with reference to the method of procedure which must be followed to hold the directors of a corporation liable individually for creating an excess of indebtedness over the amount of capital stock paid into the company.
    For the reasons above stated the plaintiff’s bill seems to be clearly deficient in form and substance, and so lacking in the material allegations of fact necessary to fix upon the directors of this company any individual liability, as to require no answer from the defendants.
    The demurrer is therefore sustained and the bill is dismissed at the cost of the plaintiff.

      Error assigned was decree dismissing the bill.

      Henry G. Niles, with him George E. Neff, for appellant.

      Allen G. Wiest, with him Ross Brenneman, F. M. Bortner and J. R. Strawbridge, for appellees.
   Opinion by

Head, J.,

The plaintiff brings this bill against a manufacturing corporation, created under the act of 1874, and a number of individuals, its directors, to compel the payment, by the latter, of certain debts contracted by the corporation for which, it is alleged, the directors have become personally liable under the provisions of clause 6 of sec. 39 of said act.

To the whole of this bill the defendants demurred assigning as causes of demurrer a number of alleged defects, both of form and substance in the bill, and, the demurrer having been sustained, the plaintiff took this appeal. The defendants contend, among other things, that even conceding their liability, such liability can be enforced only by pursuing the remedy provided by secs. 41 and 42 of the act of July 18, 1863. The plaintiff, not denying that such remedy was exclusive as long as said sections were in force, answers that these sections have been repealed by the act of 1874. As it must.be conceded that if the legislature has provided a statutory remedy to enforce a special statutory liability, such remedy must be pursued, it is manifest the bill must fall unless the plaintiff can successfully .defend the attack thus made on its line of procedure.

The clause and section of the act of 1874 referred to provide : “ The whole amount of the debts which any such company at any time owes, shall not exceed the amount of its capital stock actually paid in, unless such debt be for unpaid purchase money for lands bought, which debt shall only be a lien upon and collectible from said land ; and in ease of any excess the directors, under whose administration it occurs, shall be jointly and severally liable, to the extent of such excess, for all the debts of the company then existing, and for all that are contracted, so long as they respectively continue in office,” etc. Whilst the language of the act creating the liability is thus clear and unequivocal, there is no word in it prescribing any procedure at law or in equity to enforce that liability. We must turn to some other act, therefore, or to the general body of the law to discover the appropriate remedy.

Bj7 the Act of July 18, 1863, P. L. (1864) 1,102, the legislature provided a general plan for the incorporation and regulation of corporations for manufacturing purposes. By its terms, however, it was not to be effective throughout the state, a number of counties, including the county of York, being excluded from its operations. But by the subsequent Act of April 4, 1865, P. L. 60, its provisions were extended to the county of York.

That act of 1868, in a number of sections, commanded the performance of certain duties or enjoined the commission of specified acts by the officers and directors of such corporations, and provided that such directors should be personally liable for debts of the corporation contracted in violation of the commands or prohibitions of the act.

In sec. 26 the act declared “ that the whole amount of the debts which any such company, at any time, owes, shall not exceed the amount of its capital stock actually paid in,” and made personally liable for any such excess the directors “ under whose administration it occurs.” In secs. 41 and 42 it carefully prescribed the remedy by which such liability was to be enforced, requiring the creditor to first obtain a judgment against the corporation and issue execution thereon. If the corporation made default for a period of thirty days in the payment of the debt and costs, and failed, within the same time, to exhibit property sufficient to satisfy the same, then the writ was to be returned. Thereupon the judgment or other creditor was authorized to file a bill in equity in behalf of himself and all other creditors of the corporation against it, and against all the officers liable for its debts and contracts, “ by reason of any act or omission on its part or that of its officers, as stated in the preceding sections of this act, setting forth the judgment and proceedings thereon, and the grounds upon which it is expected to charge the officers personally.” Unquestionably this act remained in force, the liability therein created continued, the remedy therein provided to enforce that liability was the only one that could be successfully invoked down to the passage of the act of April 29, 1874.

Were secs. 41 and 42 of the act of 1863 repealed by the latter act? That the later act did not contemplate a complete and total repeal of the earlier one is, we think, manifest. In declaring and classifying the various purposes for which corporations could be lawfully created the act of 1874 adopts, without attempting to enumerate them, “ all the purposes covered by the provisions ” of the act of 1863 and its supplements, thus expressly retaining and keeping alive at least so much of said act as recited the purposes for which companies could be incorporated under its provisions. Again, the act of 1874 concludes with an express repealing clause, the careful and unusual limitation of which leaves but little room for doubt as to the legislative intent. We therefore quote it: “That from and after the passage of this act, the acts of the general assembly entitled .... An act relating to corporations .... approved July 18, 1863, .... and the several supplements to each of said acts, be and the same are hereby repealed, so far as they provide for the creation of corporations for any of the purposes provided for by this act, or are inconsistent with this act.” Had the legislature intended to repeal the entire act of 1863 the repealing clause quoted would have ended without the limitation with which it concludes. In construing the act of 1874 we are bound to give due effect to that limitation as we would to any other clause or provision in the act. To do this we are obliged to hold that the allegation that any particular section of the act of 1863 has been repealed by the act of 1874, can be supported only by showing that such section provides for the creation of a corporation for some of the purposes enumerated in the later act, or contains provisions inconsistent with it. Sec. 26 of the act of 1863, making directors liable for corporate debts in excess of the paid-up capital, has been reenacted in the same language in clause 6 of sec. 39 of the act of 1874, the later provision differing from the earlier only in the exception made in relation to the “ unpaid purchase money for lands bought.” The earlier section, therefore, disappears because it has been expressly supplied by the later one, which is different in one particular. But secs. 41 and 42 of the earlier act, which provide a distinct, carefully detailed and adequate remedy for the mischief which both acts intended to prevent or to cure, have not been in terms re-enacted nor supplied by any other provisions on the subject in the later act. On this important subject the latter is wholly and significantly silent. These sections are not, therefore, they cannot be, inconsistent with anything in the act of 1874. On the contrary, if we regard them as unimpaired by that act, we give to it a symmetry- and completeness that would be wanting had it created a new and special liability and then left a suitor, seeking to enforce it, to grope aifi^d the mazes of the whole body of general law and -precedents', to find, at his peril, the. proper remedy.

Although tiñe diligence of the learned counsel on both sides of this case has not resulted in the discovery of any case in which the exact question now before us has been ruled by our Supreme Court or this court, we have been referred to two cases in which able common pleas judges have reached the same conclusion herein adopted: Wagner v. Corcoran, 2 Pa. Dist. Rep. 440; Green v. Whitehead, 5 Pa. Dist. Rep. 612.

That no appeal was taken in either of those cases although distinguished counsel were concerned, and, in one of them at-least, a very large sum of money was involved, may be fairly regarded as evidence that the doctrine announced in them must have struck the professional mind as neither startling nor unsound. In Margarge & Green Co. v. Ziegler, 9 Pa. Superior Ct. 438, it was held that section 34 of the act of 1863 was reenacted in clauses 8 and 9 of section 89 of the act of 1874, without the imposition of the penalty contained in the earlier act, and in that respect, therefore, the two acts were inconsistent. It was further held that where the forbidden excess of debts had been created, the personal liability of the directors followed and from that liability they could not be relieved, by applying to such excess, which they were bound to pay themselves, the corporate assets and thus reducing the debts until they no longer exceeded the capital paid in. It is true that the court also, in that case, upheld the jurisdiction of a court of equity as against a general objection that the remedy of the plaintiff creditor was at law. But the report of the case' shows nothing to indicate that the question now before us was raised by the record, argued or considered. It is certain there, was no demurrer or plea raising it, but there was an answer on the merits. On this ground chiefly if not entirely the objection was overruled. And it was rightfully overruled because the remedy, if any exist, is in equity. The sections of the act of 1863, referred to, so declare. But they also require the creditor, as a condition precedent to his right to invoke that remedy against the directors, to take certain proceedings against the corporation itself, and until he does so, his bill against the directors is premature. /

But the appellant argues that the,/'averment in the bill that the corporation had been adjudicated a bankrupt dispensed with the necessity of any preliminary proceeding against it, even conceding that the act of 1863, as to. tlie remedy, remained unrepealed. To this it is sufficient to answer that the legislature has not seen fit to make any such exception to the rule of procedure it has laid down tobe followed in every case. Besides, the adjudication in bankruptcy in 1904 did not dissolve the corporation. It continued to exist in the possession of all its original powers to again acquire property and do business, so that, under more favorable financial conditions or better management, it might again become solvent.

We are strongly urged also by the appellee to declare that, since the passage of the Act of February 9, 1901', P. L. 3, authorizing the increase of the capital stock or indebtedness of any corporation “ to such an amount in the aggregate of each as it shall deem necessary .... with the cpnsent of the persons, etc., holding the larger amount in value of its stock,” there no longer exists any personal liability of directors for the acts complained of in the present bill. Of course if this position be tenable the plaintiff has no right of action whatever against the defendants. But we do not think it necessary to consider this question. The plaintiff plants its cause squarely upon the proposition that the personal liability created by the act of 1874 still exists and can be enforced in the present proceeding because sections 41 and 42 of the act of 1863, prescribing a different line of procedure, have been repealed by the act of 1874. Having failed to convince us that any such result was effected by the passage of that act, the case must fail for want of the only foundation on which it could rest, and the learned court below was right in so holding.

Decree affirmed and appeal dismissed at costs of appellant.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Marlatt v. Aleppo Township School District, Appellant.

      School law — Health law — Burial of the dead — Smallpox—Act of April. 11,1899, P. L. 38.
    Under the Act of April 11, 1899, P. L. 38, a school board has power through a committee of the board to enter into a contract with an undertaker, binding upon the school district, to bury a poor person who has • died of the smallpox. It is not necessary that such-a contract should be ’ made by a sanitary agent selected in the manner prescribed, hy the aot;¿.

      Argued April 10, 1907.
    Argued, No. 162, April T., 1907, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1903, No. 801, on verdict for plain tiff, in case of J. W. Marlatt & Son v. School District of Aleppo Township.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Appeal from judgment of alderman.
    Verdict and judgment for plaintiff for 175.00.
    On motion for judgment for defendant non obstante veredicto Brown, P. J., filed the following opinion :
    J. W. Marlatt & Son brought this action against the school district of Aleppo township to recover $75.00 with interest from January 1, 1903.
    At the trial the late president of this court (Hon. F. H. Collier) directed a verdict for the plaintiff subject to the question of law reserved, whether there was any evidence warranting a recovery.
    The undisputed testimony was, that in December, 1902, the school board, at a special session, appointed two of its members (W. J. Stewart and William Dawson) a committee to take charge of the case of John Morelan, reported to be suffering from smallpox, “ with full power to act as to them seems best in the case.”
    The action of the committee substantially appears in the testimony of Mr. Stewart. “ There was smallpox in the house. John Morelan was a patient at the time, and we took charge of it; and we saw the people were in very poor circumstances; hadn’t anything in the house, were practically starving; and we had to provide coal for them and groceries, and see that the doctor would take care of them; and such things as that. And in the meantime there was another case developed in the house; it was John Morelan’s mother, and she died; and then we instructed the undertaker to bury her, which he did.”
    Seventy-five dollars is the plaintiff’s bill for the coffin, the grave, and the team hire essential for the modest and decent interment of this poor colored woman — an interment speedily necessary for the protection of the public health.

      October 7, 1907 :
    Section 2 of the Act of April 11, 1899, P. L. 38, provides, “ In every case of the prevalence of any contagious or infectious disease in any township of this commonwealth, the board of school directors of such township shall have the power by themselves — to enter at any time upon any premises in the said township in which there is suspected to be any contagious or infectious disease, mr nuisance productive of such disease and detrimental to the public health, for the purpose of examining said premises and abating any nuisance found therein detrimental to the public health.”
    This legislation is designed in the interest of the public, and the general and incidental power of the school board in meeting promptly emergency calls for public protection against grave dangers of infectious and contagious diseases, should receive a broad and liberal construction.
    While the resolution of the board of directors related to John Morelan, its real purpose related to the smallpox reported to be in John Morelan’s house. The disease was there — and so was Mrs. Morelan, and she was suffering (subsequently dying) from the disease. And the committee being directed to take charge of the house — for that in effect was within the public scope and duty of the board — the school district became liable for the action of the committee in its prompt effort to stamp out the disease.
    Upon the reserved question judgment on the verdict is directed to be entered in favor of the plaintiffs.

      Error assigned was in entering judgment for plaintiff on the verdict.

      A. B. Say, for appellant.

      Charles A. Woods, for appellee.
   Opinion by

Head, J.,

The opinion filed by the learned court below in entering judgment on the verdict is so clear and satisfactory that there is but little left for us to do except,to express our approval of the conclusion reached.

It is therein well said that the Act of April 11, 1899, P. L. 38, “ is designed in the interest of the public and the general and incidental power of the school board, in meeting promptly emergency calls for public protection against grave dangers of infectious and contagious diseases, should receive a broad and liberal construction.” One of the highest functions of any government, general'or local, is to protect and safeguard the public health. In vain would the commonwealth annually expend her millions for the education of her children and rear temples in which their attendance is compelled by law, unless practical means were provided to prevent, in time of pestilence, the very aggregation of the children becoming itself a source of increased danger to them and a multiplication of the forces of destruction threatening them. The act of 1899 is an effort on the part of the legislature to provide such means in townships, as already exist in cities and boroughs through the operations of boards of health.

Under its terms the school boards are not only given, generally, “full power and authority to make and enforce all needful rules and regulations to prevent the introduction and spread of contagious or infectious diseases; ” but are expressly authorized “ to enter at any time upon any premises in the said township in which there is suspected to be any contagious or infectious disease, or nuisance productive of such disease, for the purpose of abating any nuisance found thereon detrimental to the public health.” These powers, the act declares, may be exercised- “by themselves, or by a sanitary agent to be by them appointed.” In the light of this language we cannot assent to the conclusion, urged by the learned counsel for the appellant, that the board may lawfully act or expend any public money only through a sanitary agent, after such agent had been selected in the manner prescribed by the act. Such a construction would do violence to both the letter and spirit of the law.

When the fact that smallpox had appeared in their township was brought to the attention of the school board of the defendant, they acted with commendable promptness. Their committee, duly appointed and armed with the powers conferred by law on the board, visited the premises of the stricken person, and among other acts performed by them, they employed the plaintiffs to bury the body of a colored woman who had died in that house from the loathsome disease. Such act was not only responsive to the demands of our common humanity, but it was the abating of a nuisance of the most menacing character. The only way to abate such a nuisance and thus discharge the imperative duty, was to bury the body decently out of sight. We think, therefore, the learned court below was clearly right in entering judgment on the verdict.

Judgment affirmed.


text:
    Shady Avenue.

      Road law — Paving—Grading—Single improvement — Sidewalks—Notice — Act of May 16, 1891, P. L. 75.

    Where an ordinance for the grading and paving of a street, a part of which is level and a part hilly, provides that the level part shall be paved with asphalt, and the hilly part with block stone, and the work is let in two contracts on the same day, the asphalt paving being given to one contractor, and the stone paving to another, the work though done under the two contracts is a single improvement, and one jury of view may assess the benefits therefor.
    A sidewalk is not included in the term “street” within the meaning of the statute of Pennsylvania relating to the paving and grading of streets.
    A municipality cannot charge a property owner with the cost of laying a sidewalk, unless the owner has been previously notified to do the work, and has refused or neglected to do so.
    Argued April 11, 1907.
    Appeal, No 28, April T., 1907, by S. A. Meals, from order of C. P. No. 1, Allegheny Co., Dec. Term, 1903, No. 196, dismissing exceptions to report of viewers In re paving of Shady Avenue.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Exceptions to report of viewers.
    The exceptions were as follows:
    2. The amount of the contract price of the work between Woodland avenue and Superior street was $3,657.82, and the amount of the contract price between Woodland avenue and Susan McGeary’s north line was $17,484.55. The property holders on that part of Shady avenue between Woodland avenue and Superior street were assessed only $1,999.55, and the balance of the expense of the cost of the work between the two last mentioned points, to wit: the amount of $1,658.38, was assessed on the property owners on that portion of the street between Woodland avenue and Susan McGeary’s north line, making a total assessment on that . portion of the street of more than the actual cost of the work, and no part of the cost of the work of grading, paving and curbing of said Shady avenue was placed on the city of Allegheny.
    5. The city of Allegheny has assessed the cost of the construction of the sidewalks between Woodland avenue and Susan McG-eary’s north line, amounting to the sum of $4,520.30, and that between Woodland avenue and Superior street, amounting to $789.84, on the abutting property owners, without giving the property holders any notice that they would be compelled to pay for the sidewalks, and the city has no authority in law to sustain any assessment for the cost of said sidewalks.

      Errors assigned were (1, 2) in dismissing the exceptions.

      Ralph L. Smith, with him Trimble Qhalfant, for appellant.
    The measure of assessments for street improvements is the amount of the benefit, but it is limited to the cost of the improvements : Witman v. Reading City, 169 Pa. 375 ; Wabash Avenue, 26 Pa. Superior Ct. 305.
    The ordinance which authorized the grading, paving and curbing of Shady avenue does not contain any authoritjr to lay sidewalks. It merely authorizes the grading, paving and curbing of the street.
    The right to enforce the laying of sidewalks is simply a regulation under the police power of the municipality: Philadelphia v. Penna. Hospital, 143 Pa. 367; Pittsburg v. Daly, 5 Pa. Superior Ct. 528 ; Pittsburg v. Biggert, 23 Pa. Superior Ct. 540 ; Cooley on Taxation, 398 ; Lohr v. Philipsburg Boro., 156 Pa. 246.

      Craig Smith, for appellee.
    The assessment is for special benefits derived from the whole improvement, and not for the cost simply of the bit.of pavement which may happen to be in front of his lot: Cooley on Taxation (3d ed.) 1167 ; Washington Ave., 69 Pa. 352.
    October 7, 1907:
    We contend that this gives the city the authority to pave the sidewalk, as part of the original paving of the street, and collect from abutting property holders so much of the cost of the whole improvement as the viewers find they are specially benefited. The sidewalk is a part of the street. By authoritative definition, as well as by common usage, the term “ street ” applies to the whole public thoroughfare, and in such an act includes the sidewalks : Taber v. Grafmiller, 109 Ind. 209 (9 N. E. Repr. 721) ; City of Kokomo v. Mahan, 100 Ind. 242; Dickinson v. City of Worcester, 138 Mass. 555 ; Town of Rosedale v. Ferguson, 3 Ind. App. 596 (30 N. E. Repr. 156); Wiles v. Hoss, 114 Ind. 371 (16 N. E. Repr. 800) ; Dooley v. Town of Sullivan, 112 Ind. 451 (14 N. E. Repr. 566) ; In re Burmeister, 76 N. Y. 174 ; Pomfrey v. Saratoga Springs, 104 N. Y. 459 (11 N. E. Repr. 43) ; Jacquemin v. Finnegan, 80 N. Y. Supp. 207; In re Burke, 62 N. Y. 224 ; In re Grube, 20 Hun, 303; Howell v. Morrisville Boro., 212 Pa. 349 : Pittsburg v. Daly, 5 Pa. Superior Ct. 528; Greensburg Boro. v. Young, 53 Pa: 280.
   Opinion by

Head, J.,

The question whether the work done on Shady avenue constituted but a single improvement, or was, in reality, two -sep. arate and distinct ones, is, we think, answered by the ordinance authorizing it. That ordinance, approved May 21, 1902, provided, “ that the grading, paving and curbing of Shady avenue, Eleventh Ward, from Superior avenue to Susan McGeary’s North line, is hereby authorized and ordered,” etc. The director of public works was empowered to prepare specifications therefor and advertise for bids. The ordinance further provided that “ the cost and expense of said improvement ” be assessed and collected in accordance with the laws of the commonwealth. It appears that a portion of Shady avenue between the limits designated in the ordinance was level whilst the remainder of it was steep and hilly. The specifications, directed by the ordinance, were, therefore, so prepared as to require the paving of the flat portion of the street with asphalt, the hilly portion with block stone. When the bids were received the work was let in two contracts, executed on the same day, the asphalt paving going to one contractor, the block stone paving to another. Presumably this plan was adopted because, in the judgment of its administrative officers, the city would reap some advantage thereby. It is a matter of common knowledge that the paving of a street usually involves excavation to bring about uniformity of grade and contour; a substructure to provide for drainage and support, and finally a surface finish of asphalt, stone, brick or other like material: But the acts of assembly on the subject of street paving and the ordinance, now under consideration, deal not with any or all of these steps marking the progress of the work. It is the completed pavement that alone constitutes the “ improvement ” contemplated by the law and the ordinance. Nor does either undertake to restrict the agencies by the aid of which the municipality may secure the improvement ahthorized. Because these agencies are several the improvement is none the less single. An owner desiring to erect a building may assign the different parts of it to as many different contractors; but the completion of all of the contracts results in but one structure. We are unable to perceive any reason why the fact that the work, in the present case, was done by two contractors should lead to the conelu.sion that there were two improvements when the ordinance authorized but one. The appellant’s property abutted on the line of the improvement that was authorized and the viewers, in ascertaining the benefits which had accrued to him by reason thereof, properly took into account the improvement in its entirety. The second exception to their report was, therefore, properly dismissed and the first assignment of error must be overruled.

But it appears from the record that, in the construction of the street improvement authorized by the ordinance quoted, new flag-stone sidewalks were laid along the entire portion of the street designated in the ordinance, and the cost of these sidewalks is assessed also against the owners of the abutting property; although no notice was given to them that such walks were required and no opportunity afforded them to provide for such construction themselves. By his fifth exception to the report of the viewers, the appellant objected to the assessment against him of a portion of the cost of such sidewalk, and the refusal of the court to sustain that exception constitutes the second and remaining assignment of error.

Whilst it may be conceded that the term “ street,” in its broadest significance, includes the sidewalk as well as the cart-way, it- has long been the policy of the law to distinguish between them, and to recognize that, as to the former, the lights and responsibilities of the owner of property are quite different from those enjoyed by or imposed on him in relation to the latter, or the street as that word is used and understood in the common speech of the people. The owner of urban property, as a rule, may be compelled to lay a sidewalk at his own expense and is bound to maintain it in safe condition for public travel. As a consequence we find that it is customary in legislative acts on the subject to distinguish between the street or cartway, the duty to improve and maintain which is primarily on the municipality; and the sidewalk, as to which the primary obligation is on the property owner. In no act is this distinction more carefully marked than in that of May 16,1891, P. L. 75, under which the proceeding to assess the benefits in this case was doubtless instituted.

After declaring in section 8 that “ every municipal corporation shall also have power .... to grade, pave, etc., any public street, etc., and providing for the assessment of the costs and expenses thereof on the properties benefited, it further enacts, in section 11, “the municipal authorities may require sidewalks .... to be laid, and after notice to the owner .... and his failure to do so, the said municipal authorities may do the necessary work and assess the cost thereof upon the property of'said owner. ” It is clear, therefore, that under this act there is no authority for the assessment complained of, because there was no ordinance requiring the appellant to lay a sidewalk, and no notice to him to do so. The city having undertaken to lay the sidewalk without ordinance and without notice cannot-lawfully impose the cost thereof or any part of it on this appellant: Pittsburg v. Biggert, 23 Pa. Superior Ct. 540.

It is argued, however, that the city need not rely on the act of 1891 for its authority to construct a sidewalk and hence was not bound to observe the provisions of that act on that subject. It may be conceded that the act of 1891 did not repeal the earlier special Acts of April 5, 1849, P. L. 341, April 8, 1851, P. L. 371, and April 1, 1870, P. L. 751; but this fact in no way helped the.appellee not only because it is manifest that the present proceeding was not begun and conducted under either of them, but also because in each of them the distinction between a “ street ” and a “ sidewalk ” already noted is pointedly recognized. In no one of them was the legislature content to rest on the proposition now urged that when it said “ street ” it included therein “ sidewalk. ”

Finally, to put beyond all doubt the fa^t that sidewalks, in legislative language and intent, are not included in the term P. L. 364, “ street,” the Act of June 4,1901, providing when, how, upon what property and to what extent liens shall be allowed for municipal improvements, and repealing all other acts on that subject, provides, in section 8, that “ no claim shall be filed for paving or repairing the footway of any highway unless the owner shall have neglected to do said work for such length of time as may be prescribed by ordinance, after notice so to do, ” etc.

Reading the present ordinance, therefore, in the light of a continuous line of legislative and judicial precedents we can find therein no warrant for the assessment complained of; nor can it be justified under the act of 1891 or any other act to which our attention has been directed. We must consequently sustain the second assignment of error.

. The fifth exception to the report of viewers is sustained and the decree of confirmation modified accordingly. The costs of this appeal to be paid by appellee.


text:
    Sprague v. Reilly, Appellant.

      Beal estate brokers — Brokers—Principal and agent — Evidence—Statement of claim — Admission of record.

    In an action to recover commissions on sale or exchange of real estate, where the plaintiff describes himself in his statement of claim as “a dealer in real and personal property, and in the regular course of business,” made the sale or exchange in question, and it is admitted that plaintiff had not taken out a license as required by law, the statement of claim is admissible as evidence tending to show that the plaintiff is a real estate broker, and when the statement is supported by the evidence of two witnesses called by the defendant, it is error for the court to give binding instructions for plaintiff.

      Practice, C. P. — Repeated offers of testimony — Trial.
    In considering the propriety of a refusal to permit counsel to make a formal offer of testimony, because a similar offer had already been made and ruled, much must be left to the sound discretion of the judge.
    Argued April 11, 1907.
    Appeal, No. 97, April T., 1907, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1899, No. 485, on verdict for plaintiff in case of T. A. Sprague now to use of C. Y. Morozwicz v. P. J. Reilly.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover commissions on sale or exchange of real estate. Before Evans, J. / ,
    At the trial defendant made the following offer:
    Defendant offers in evidence the “ Statement of Claim ” of the plaintiff in this case, for the purpose of showing that in the year 1898, said plaintiff was a real estate broker, by using in his statement the following words, to wit: “ The plaintiff is a dealer in real and personal property, and in the regular course of his business undertook to sell and exchange a certain personal and mixed'property of the defendant,” etc., to be followed by evidence that the records of Allegheny county do not contain any conveyances from or to the said Sprague, the plaintiff, during the year 1898, or for several years before and after that date; also by witnesses who will testify that said plaintiff was a real estate broker in the year 1898.
    The Court: Have you any objection, Mr. Langfitt?
    Mr. Langfitt: We do not object to his offering the statement except that of course it is improper.
    The Court: The language of the statement does not sustain the offer.
    Objection sustained and bill sealed for defendant. [2]
    Defendant presented this point:
    That if the jury find from the evidence in this case that the plaintiff was a real estate broker in the year 1898, then their verdict must be for the defendant. Answer : Refused. There is no evidence that he was a real estate broker. [5]

      October 7, 1907 :
    Verdict and judgment for plaintiff for 1499.05. Defendant appealed.

      Errors assigned were (2) ruling on evidence, quoting the bill of exceptions; (5) above instruction, quoting it; and (6) in giving binding instructions for plaintiff.

      Jos. A. Gtuinyon, for appellant.
    Although one not a real estate broker, by having a special contract can recover a commission for selling real estate, yet for one who is a real estate broker it is absolutely necessary to have paid a license fee as such to enable him to recover a commission, even though he has a special contract: Johnson v. Hulings, 103 Pa. 498.

      John 8. MoKelvey, with him Langfitt $ Wolntosh, for appellee.
    It is improper to submit to the jury a fact as to which no evidence has been given: Dubois v. Lord, 5 Watts, 49; Elkins v. McKean, 79 Pa. 493; Holland v. Kindregan, 155 Pa. 156.
   Opinion by

Head, J.,

The plaintiff brought this action to recover the sum of 1338.65, being “a commission of five per cent” on the value of certain real estate which it is alleged the defendant exchanged through the efforts of the plaintiff. Against this claim the defendant sought to interpose the defense that the plaintiff, at the time, was a real estate dealer or broker, and, having neglected to take out the license required by law, could not recover. That such defense, if made out, would have precluded any recovery cannot be gainsaid: Johnson v. Hulings, 103 Pa. 498. The burden of proof was, of course, on the defendant. In attempting to discharge this burden and make proof of the facts necessary to support his defense, the defendant offered in evidence, inter alia, the statement of claim filed by the plaintiff, in which he averred that he was “ a dealer in real and personal property and in the regular course of business undertook to sell or exchange ” the dairy property of the defendant for certain lots, upon a.n agreement by the latter to pay a commission of five per cent. This offer was made “ for the purpose of showing that the plaintiff was a real estate broker,” but was rejected by the court for the reason that “ the language of the statement does not sustain the offer.” Why did it not ? There was a clear, explicit admission of record that plaintiff was a “ dealer ” in real estate, and had conducted this transaction, which was the sale or exchange of the property of a stranger to him, in the regular course of his business.” Who and what is a dealer? Webster defines a “ dealer ” as “ a trader, a shopkeeper, a broker, or a merchant.” In the Century dictionary a “ dealer ” is defined to be “ one whose business is to buy and sell, as a merchant or a broker.” Accepting these unquestioned authorities, which but voice the common understanding of the expression, it would seem to follow that when one describes himself as “ a dealer in real property,” he has practically said that he is “ a broker ” or “ trader ” in real estate, or that he is one “ whose business is to buy and sell ” real property “ as a merchant or a broker.” That this was the idea intended to be conveyed appears to be further indicated by the language immediately following that already referred to, in which the plaintiff declares that the transaction he conducted for the defendant was not unusual or exceptional, but was “ in the regular course of business.” Of what business ? Plainly of the plaintiff’s business as a dealer or broker in real property. But the defendant did not stop here. Charles Beekman, a witness called by him, testified that he was in the real estate business, that he had known the plaintiff fifteen years, that he knew him in 1898 and “ knew he was in the real estate business,” and that he knew he had transactions in that year “ as a broker.” To the same effect, although not quite so clear and emphatic, was the testimony of S. A. Dixon, another witness. The rejected offer, coupled with and followed by the evidence of these witnesses, in the absence of any contradiction or satisfactory explanation from the plaintiff, would, in our opinion, have furnished ample warrant for a finding by the jury that the plaintiff was a real estate broker, and, it being conceded that he had not taken out the license required by the law, the defense would have been complete. We are not to be understood as saying that the plaintiff is concluded by the admission in 1ns statement, as to the character- of his business, unless such conclusive effect be given to it by the operation of a rule of court on that subject. That question is not now before us. It follows from what we have said that the learned trial court fell into error in rejecting the offer of the plaintiff’s statement, and, as a consequence of that ruling, in refusing the defendant’s point and giving binding instructions in favor of the plaintiff. The second, fifth and sixth assignments must be sustained.

Had the defendant been permitted to introduce all of his direct evidence tending to prove that the plaintiff was a real estate broker, prima facie, his defense would have been made out. It was not necessary for him, in anticipation of a possible explanation that might never be advanced, to attempt to show that plaintiff owned no real estate with which he could have dealt. Had the plaintiff sought to avoid the apparent effect of the admission in his statement by evidence tending to show that he dealt ” only in his own real estate, then the testimony, the rejection of which is complained of in the first and third assignments, might have been pertinent and timely. We do not think, therefore, that in declining to admit this testimony, as the record then stood, any reversible error was committed.

As the case must go back for another trial we do not think it necessary to advert to the fourth assignment, further than to observe that, in considering the propriety of a refusal to permit counsel to make a formal offer of testimony, because a similar offer has already been made and ruled, much must be left to the sound discretion of the trial judge. It is not only his right, but his duty, to prevent waste of the public time and the incumbrance of the public records by useless repetitions of what has been once fairly done. At the same time it is within our common experience that offers of testimony, even when made by the most reputable and experienced counsel, will sometimes, from the haste incident to a sudden call for such offer, from some misapprehension of the facts or other cause, exhibit a lamentable lack of that precision and accuracy so desirable in a record thus formally made up. To permit the correction of such defects by a second and more complete offer would certainly be no abuse of that wise discretion with which the law clothes the trial judge.

Judgment reversed and a venire facias de novo awarded.


text:
    Youngk v. Keim, Appellant.
    October 7, 1907:

      Judgment — Opening judgment — Signature to note — Forgery—Consideration.

    On a rule to open a judgment entered on a judgment note under seal, the defendant denied the signature. The first name of the signature was in the following form: “Elizzie.” There was testimony that the defendant sometimes wrote her first name “Elizabeth,” and at others used the shorter form “Lizzie.” It was practically admitted that the disputed signature in all other respects, save only the unusual form of the first name, bore a close resemblance to those admittedly genuine ones submitted for comparison. There was evidence that the note was given to secure payment of a balance on settlement of accounts in a business conducted by defendant’s husband as agent. There was some conflicting testimony as to the agency of the husband. Held, that the rule to open the judgment was properly discharged.
    Argued April 12, 1907.
    Appeal, No. 139, April T., 1907, by defendant, from order of C. P. No. 2, Allegheny Co., Jan. Term, 1901, No. 39, discharging rule to open judgment in case of Mary L. Youngk v. Elizzie S. Keim.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment.
    The opinion of the Superior Court states the case.

      Error assigned was in discharging rule to open judgment.

      L. Q. Barton, for appellant.

      William S. McDowell, for appellee.
   Opinion by

Head, J.,

That the evidence in this case is somewhat conflicting, on the issues of fact involved, does not furnish any sufficient foundation for the conclusion that the learned court below was guilty of an abuse of discretion in discharging the rule to open the judgment. On the main question, as to the genuineness of the signature, there was not only evidence which, if believed, would support the finding that the note was signed by the defendant, but the fair preponderance of the testimony clearly points to that conclusion. Indeed,, apart from the fact that the first name of the signature takes the unusual form “ Elizzie,” there is no testimom' to support an allegation of forgery except the weak and evasive denial by the defendant herself that she signed the note. It was clearly shown that the defendant, in making genuine signatures, sometimes wrote her first name “ Elizabeth,” and at others used the shorter form, “ Lizzie.” It was practically admitted that the disputed signature, in all other respects save only the unusual form of the first name, bore a close resemblance to those admittedly genuine ones submitted for comparison. W. S. McDowell, a reputable member of the Allegheny bar, to whom the note was delivered immediately after its execution, testified : “ This note was written by me and the amount left in blank, which amounts were filled in, the time of payment and the date at the time the note was delivered to me. I called Mr. Keim’s (husband of defendant) attention the following day as to the signature. I was informed that she sometimes signed her name ‘Lizzie’ and sometimes ‘ Elizabeth,’ and in executing this note she had got mixed on the two signatures.” After hearing the testimony the learned court below-thus expresses his conclusion on this point: “ Several admittedly • genuine signatures of Mrs. Keim were put in evidence, and from a comparison of these with the signature to the note in question, we have no hesitation in saying that the note is genuine. She evidently began with the intention of writing her name ‘ Elizabeth,’ and then proceeded to write it as ‘ Lizzie,’ without taking away the ‘ E ’ and beginning the ‘ Lizzie ’ with a small letter.” Besides, it seems highly improbable that a forger, after studying the genuine signatures of the defendant so closely as to be able to simulate them successfully, would imperil the entire scheme by originating and using a form of name that nowhere appeared in any of his models.

The signature having thus been found to be genuine the seal attached to the note imports a consideration. But there was evidence to show that for some time before the execution of the note the husband of the defendant, G. S. Keim, carried on the business of contracting and building as her agent. He was engaged in building a house which his wife subsequently bought, and at that time became indebted to the plaintiff for mill work, lumber, etc., furnished by her. On a general settlement of accounts the note now in dispute was given to secure payment of the balance arrived at. As to the agency of defendant’s husband, and on the question whether material to the full amount of the note actually went into the particular house bought by the defendant, there is again some conflict in the testimony. But, as before stated, this does not establish a right to have the judgment opened, else there would be but little use in the execution of written instruments under seal.

Upon a review of all the evidence we find ourselves unable to say that there has been any abuse of discretion by the learned court below, or that the findings of fact upon which his conclusions rest are not supported by the testimony.

Judgment affirmed.


author: Rice, P. J.,

text:
    Murphey to use v. Greybill, Appellant.

      Practice, C. P. — Motion for judgment non obstante veredicto — Evidence —Fraud—Act of April 22, 1905, P. L. 286.
    In an action of assumpsit where the defendant sets up fraud as a defense, and the court overrules a request for binding instructions for plaintiff, and a verdict is rendered for defendant, the plaintiff may move for judgment upon the whole record non obstante veredicto as provided by the Act of April 22, 1905, P. L. 286, and this motion does not need any prior reservation of a question of law to support it.
    In such a case the appellate court will proceed to a consideration of the evidence, not as a jury would in a case where there is a conflict of testimony, or where the credibility of witnesses is involved, nor as a trial court would in a case where a motion for new trial is made upon the ground that the verdict was against the weight of the testimony, but as an appellate court does in a case where the trial judge has affirmed the plaintiff’s point requesting binding instructions in his favor, and the defendant has appealed from the judgment upon the verdict so directed.

      False representations — Fraud—Declaration of intention.

    Exptessions of purpose, promises and predictions, that fail of realization, are fraudulent in law only when they are connected with misrepresentations respecting alleged facts, or falsely held out a prospect of collateral advantages that leads the vendor to accept a price greatly below the real value of the property parted with.

      Evidence — Contract—Written instrument — Prior negotiations.

    When parties have deliberately put their engagements into writing, in such terms as import legal obligations, without any uncertainty as to the object or extent of such engagements, all prior negotiations are merged in and extinguished by the written instrument which is the final result of their bargainings.

      Vendor and vendee — Lease—Consideration.
    Where a vendor of land has accepted a lease of the land from the vendee, has received full consideration for the land, and subsequently acknowledged the binding force of the lease, he cannot allege that the lease was procured from him by fraud.

      Vendor and vendee — Escrow—Condition—Voidable title — Delivery— Covenant — Fraud.
    An escrow is a written instrument, which by its terms imports a legal obligation, deposited by the grantor, promissor or obligor, or his agent with a stranger or third person,.that is, a person not a party to the instrument, such as the grantee, promisee or obligee, to be kept by the depository until the performance of a condition or the happening of a certain event, and then to be delivered over to take effect. Where the future delivery depends upon the payment of money, or the performance of some other condition, and the grantee obtains possession of the deed without performing the condition, he acquires at the most but a voidable title to the land described. If the condition precedent be expressed in writing, the construction of the writing is for the court. While the courts generally hold the grantee to very strict compliance with the conditions precedent to delivery, yet, in determining from the writing what they are, no constrained construction is to be put upon the words in order to make that a condition precedent which was not clearly so intended by the parties.
    Where words can be construed either as a condition, a reservation, or a covenant, the latter construction is favored.
    An owner of a mill deposited with a trust company a deed for his property, in escrow. By the terms of the escrow agreement he was to receive money and stock of a corporation, which was to take title to the property. Subsequently he was notified that the option in the escrow agreement had been exercised. The trust company delivered the deed to the purchaser, and forwarded the money and stocks to the grantor, who receipted for them. About the same time the grantor executed a lease whereby he covenanted to operate the mill for a period of sixty days as lessee. After the organization of the corporation he acknowledged his liability for rent to the company. In an action against him for rent he attempted to avoid the lease on the ground that certain representations had been made to him as to the source from which the corporations was to derive the money part of the consideration. There was no evidence that any false representations were made to him to his injury, at the time of the execution of the deed in escrow, or that he was induced to sign the deed by any representations that the money part of the consideration was derived or was to be derived from any particular source. Held, that the defense set up was insufficient.
    Argued March 11, 1907.
    Appeal, No. 22, March T., 1907, by defendant, from judgment of C. P. Cumberland Co., Nov. T., 1904, No. 219, for plaintiff non obstante veredicto in case of Joseph C. Murphey to use of David R. Locher and the Security Title & Trust Company of York, Pa., Receivers of the Eastern Milling & Export Company, v. John D. Greybill.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beater, JJ.
    Affirmed.
    Assumpsit for rent. Before Sadler, P. J.
    The facts are stated in the opinion of the Superior Court,

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

      R. W. Woods, for appellant.
    The court did not have a right to set aside the verdict on the point presented for binding instructions under the Act of April 22, 1905, P. L. 286: Dalmas v. Kemble, 215 Pa. 410; Casey v. Penna. Asphalt Paving Co., 198 Pa. 848 ; North American Oil Co. v. Forsyth, 48 Pa. 291; Butts v. Armor, 164 Pa. 73; Reel v. Elder, 62 Pa. 308.
    Agreement of escrow must be taken as a whole because it contained as conditions precedent the terms upon which the grantor, John D. Greybill, the appellant in this case, was willing to deliver his deed : Dempwolf v. Greybill, 213 Pa. 163.
    When a promoter induces subscriptions on the promise that in consideration of stock to be retained by him as part of the plan he will furnish subscriptions to stock for the benefit of the subscribers, that promise is part of the consideration entering into the contract of subscription, and a default on the part of the promoter avoids the contract: Beem v. McKusick, 10 Cal. 538.

      R. Q. Niles, of Niles Neff, and Conrad Hamlleton, of Wetzel $ Hambleton, with them Barr, Brown Lloyd, for appellees.
    October 7, 1907:
    There was no conflict of evidence in this case when the same was submitted to the jury. In entering judgment for plaintiff the learned court was obliged to assume that all of the evidence adduced on the part of the defendant, which had been legally admitted, was true, but that notwithstanding its verity, it was insufficient in law to defeat a recovery: Delmas v. Kemble, 215 Pa. 410.
    All conversation, all negotiations, all oral promises, all verbal agreements, are forever merged in, superseded and extinguished by the sealed instrument which is the final outcome and result of the bargaining of the parties: Krueger v. Nicola, 205 Pa. 38 ; Miller v. Fulmer, 25 Pa. Superior Ct. 106 ; Grove v. Hodges, 55 Pa. 504.
    Even illegal acts committed by the officers of the milling company, after Greybill became a stockholder, would be no defense to this action : Dettra v. Kestner, 147 Pa. 566.
    After discovery of alleged fraud Greybill elected to affirm the contract by acknowledging its validity : Learning v. Wise, 73 Pa. 173; Eichman v. Hersker, 170 Pa. 414; Grymes v. Sanders, 93 U. S. 55; Dunn v. Bank, 204 Pa. 53.
   Opinion by

Rice, P. J.,

This appeal arises upon the record of an action of assumpit upon a lease, dated April 8, 1901, for the term of sixty days, at a rental of S100, executed by Joseph C. Murphey as lessor and by the defendant as lessee, and assigned by Murphey to Philadelphia Milling Company, which, by change of name, subsequently became Eastern Milling & Export Company of Pennsylvania. Later, in a suit in equity in the circuit court of the United States for the eastern district of Pennsylvania, in which Eastern Milling & Export Company, a corporation organized under the laws of New Jersey in March, 1901, was plaintiff, and Eastern Milling & Export Company of Pennsylvania was defendant, in which suit it was averred and admitted that all of the outstanding shares of the capital stock of the Pennsylvania company were owned by the New Jersey company, receivers of the Pennsylvania company were appointed who brought this action for the rent that was alleged to have accrued between the date of the lease and March 8, 1904. It was admitted by the defendant upon the trial that he had been in possession of the premises during the whole of that period and had paid no rent. As shown by the affidavit of defense and the bill of particulars filed by him, as well as by the proceedings on the trial, and his counsel’s statement of the question involved in this appeal, his sole defense was that his execution of the lease was induced by fraud. In view of one branch of the argument of appellant’s counsel, it seems important to refer in detail to the proceedings which led up to the judgment under review. At the conclusion of the testimony the plaintiffs presented the following point: “ Under all the evidence in the case the verdict must be for the plaintiff for the amount claimed in his statement, to wit: Seventeen hundred and fifty ($1,750) dollars, less the amount paid by the defendant on account of taxes oil the leased property, to wit: five hundred and twenty-six and seventy-five one hundredths ($526.75) dollars, with interest on said balance from March 8, 1904; the amount of the verdict to which plaintiff is entitled being thirteen hundred and ninety-eight and twenty-eight one hundredths ($1,398.28) dollars.” The court refused the point and submitted the question of fraud to the jury who found for the defendant. Before verdict, the plaintiffs excepted to the charge and the answer to their point, and requested that they be reduced to writing and filed, and after verdict, moved the court to have the evidence certified and filed so as to become part of the record, and to enter judgment for them, non obstante veredicto, upon the whole record. The court, in an elaborate and well-considered opinion reviewing the evidence, sustained the motion, and from the judgment so entered the defendant took this appeal,

The defendant’s first contention is, that the question of fraud having been submitted to the jury, and the fact having been found by them, and no question of law having been reserved, the court had no power to enter a contrary judgment for the plaintiffs on the ground that the evidence was insufficient to sustain the verdict. As the law was prior to the ^Act of April 22, 1905, P. L. 286, this would have been so ; the court could have set aside the verdict and granted a new trial, but could not have entered judgment for the plaintiffs, even though under the evidence they were entitled in law to recover. But the act of 1905 “broadens the power of the judge in this respect, that whereas heretofore the verdict was required to be for the plaintiff and the reservation to be of leave to enter judgment for the defendant non obstante, now what is reserved is a request for binding direction to the jury, and may be for either plaintiff or defendant. But though thus enlarged so as to include both parties, the power of the judge is the same as it was before. He is ‘ to enter such judgment as should have been entered upon that evidence,’ or in other words, to treat the motion for judgment as if it was a motion for binding direction at the trial, and to enter judgment as if such direction had been given and a verdict rendered in accordance. What the judge may do is still the same in substance, but the time when he may do it is enlarged so as to allow deliberate review and consideration of the facts and the law upon the whole evidence. If upon such consideration it shall appear that a binding direction for either party would have been proper at the close of the trial, the court may enter judgment later with the same effect. But, on the other hand, if it should appear that there was conflict of evidence on a material fact, or any reason why there could not have been a binding direction, then there can be no judgment against the verdict now:” Dalmas v. Kemble, 215 Pa. 410. A plainer statement of the province of the court under the act of 1905 could not be made. It is thus seen that the fact' that the question of fraud was submitted to the jury, and was decided by them in favor of the defendant, could not affect the decision of the question raised by the plaintiffs’ motion, nor preclude the court from entering the judgment which ought to be entered under the evidence. The question is, whether binding direction for the plaintiffs as requested in their point would have been proper. It would have been proper if there was no evidence which, if believed by the jury, was sufficient in law or in equity to avoid the lease upon the ground of fraud. In other words, if in view of the admitted facts, and the facts alleged by the defendant which a jury could find from the evidence, as well as the inferences favorable to the defendant which a jury could reasonably draw from those facts, a binding direction in favor of the plaintiff would have been error, then this judgment should be reversed ; otherwise, not. We therefore proceed to a consideration of the evidence, not as a jury would in a case where there is a conflict of testimony, or where the credibility of witnesses is involved, nor as a trial court would in a case whore a motion for new trial is made upon the ground that the verdict was against the weight of the testimony, but as an appellate court does in a case where the trial judge has affirmed the plaintiff’s point requesting binding instructions in his favor, and the defendant has appealed from the judgment upon the verdict so directed.

The defendant had been in the milling business for many years, and was the owner of a flour mill in the borough of Car-lisle. He testified that on February 15, 1901, Newton Jackson and Charles Iv. Hannan presented to him a scheme, in which he was asked to join by putting in his mill property, to combine many of the flour mills of Pennsylvania in one corporate management and ownership. He alleges that the plan presented to him was, to create a company with a $1,000,000 preferred stock, and $3,000,000 common stock; that the preferred stock was to be used in the purchase of mills of that value, and that with it was to go to the owners of the mills, as a bonus, common stock to the amount of $1,000,000; that the remaining common stock amounting to $2,000,000 was to go to the promoters, underwriters, trust companies, and the like, for organizing the company and putting it in operation ; that bonds secured by a mortgage upon the mill properties were to be issued for $700,000, or thereabouts, to obtain a working capital; and that no money derived from the sale of these bonds should be used for any other purpose. The defendant suggested, so he testifies, that he did not think it altogether fair that $2,000,000 of common stock be issued to the promoters and capitalists concerned in the scheme, and that he thought they ought to assume some of the preferred stock. This subject was discussed, but nothing definite was agreed upon. They separated with the promise on his part that he would consider the proposed scheme, and would be in Philadelphia in a week or two, and determine what he would do. On the twenty-sixth of the same month the defendant and Jackson met in Philadelphia and determined on the main features of an agreement, which was to be embodied in writing. To that end he received from Jackson the written form of an option he was to give, and upon his return home his attorney prepared the paper of February 28, 1901, which in some particulars, but not in all, is a copy of the form of option given to him by Jackson. This paper having been executed by the defendant in the presence of his legal adviser, was sent to Jackson. Some of its provisions are of the highest importance in the determination of the question before us; therefore we quote them at length.

After reciting the defendant’s ownership of the described mill property and its appurtenances, including the use of a siding running to the Cumberland Valley Railroad, and the fact that Jackson was engaged in consolidating the Paxton Flour Mill and others, and had offered to purchase the defendant’s mill, etc., for the sum of $25,000 payable as thereinafter set forth, which the paper stated was a satisfactory consideration, the paper proceeds as follows :

“ Therefore, I, the undersigned, John D. Greybill, in consideration of the sum of one dollar, the receipt of which is hereby acknowledged do hereby agree to prepare a deed for the property above described, transferring the same to Newton Jackson, his heirs or assigns, or to a corporation to be designated by him, and accept in payment thereof the sum of $6,250 in cash, and $18,750 in six per cent preferred stock of the Eastern Milling and Export Company, or such other company as may be organized by the said Newton Jackson, to acquire said property, and in addition the sum of $18,750 of the common stock of said company. In addition to the $18,750 of preferred and common stock as herein set forth, there is to be issued the sum of $6,250 in six per cent preferred stock and a like sum in common stock, which is to be transferred to the said Newton Jackson for the $6,250 in cash as hereinbefore set forth. The deed to the property to be deposited in escrow with the Union Trust Company of Philadelphia, on or before March 15,1901, and upon delivery by the said Newton Jackson of the considerations named above, said deed shall be recorded in the office for recording of deeds, at Carlisle, Pennsylvania, and become the property of said Newton Jackson or company. It is also agreed that this option shall become void in case the Paxton Flour Mills and others now contemplated do not go into the consolidation. It is also agreed that the preferred stock issued by the said Eastern Milling and Export Company shall be limited to such an amount as may be necessary to purchase milling property, and no preferred stock shall be issued for profit to any attorney, underwriter, promoter or trust company. It is hereby further agreed that said Newton Jackson or said company shall pay to the vendor cash for the stock of grain, flour or feed on hand at the time of transfer at cost value, and in casé the vendor and vendee cannot agree on a price, then the vendor is to have the privilege of disposing of said grain, flour or feed to anyone. In case the said Newton Jackson fails to comply with the terms and conditions of this contract on or before June 1, 1901, the said trust company is hereby authorized to return said deed to the vendor, and this contract should be of no further force or effect.”

We shall refer to the provisions of this paper more particularly later, but for the present we remark that it will be seen from the foregoing recital of facts testified to by the defendant, that in the negotiations of February 15 nothing was agreed upon; that the representations of Jackson, if such they may be called, did not relate to facts existing in the past or in the present, the company not having been formed at that time; that no promise was made which bound anyone, and that the terms of the agreement the defendant might decide to make, or of the option he might decide to give, were left for future determination. Necessarily, also, the disposition of the stock of a corporation that had not been formed, and many other matters relating to the plan of organization, to the acquisition of property by such corporation, and to the methods to be pursúed.therein and in the management of its affairs generally, could not be determined at that time. As to the effect of such predictions and expressions of purpose as are alleged to have been made on February 15, we refer to Grove v. Hodges, 55 Pa. 504; Miller v. Fulmer, 25 Pa. Superior Ct. 106, and the cases therein cited. It is to be noticed further, as remarked by the learned judge below, that full deliberation was exercised by the defendant in the preparation and execution of the option agreement of February 23, and that these were done under the supervision of his own legal adviser. So far as appears, nothing was omitted from that paper which was necessary to express the full agreement he intended to make, and no artifice, trick, deceit or misrepresentation was resorted to to procure anything to be inserted in it to which he did not give intelligent and unconstrained assent. We see no ground for excepting it from the general rule, that when parties have deliberately put their engagements into writing, in such terms as import legal obligation, without any uncertainty as to the object or extent of such engagements, all prior negotiations are merged in and extinguished by the written instrument which is the final result of their bargainings. Therefore, we need not further allude to the evidence of what occurred on February 15 ; it is dismissed from consideration as having no bearing, or at least no controlling effect, upon the question for decision.

We turn then to a recital, as brief as may be, of the'transactions occurring after the execution and delivery of the option agreement.

On March 16, 1901, Jackson wrote to the defendant that he proposed to exercise the option within a few days, and requesting him to have a deed prepared conveying his property to Eastern Milling & Export Company in the name of Joseph C. Murphey as grantee — explaining that the title was to betaken in his name temporarily for legal purposes — and deposit the same with the Union Trust Company of Philadelphia. In reply the defendant wrote inquiring, “ Whether or not you have secured a million dollars’ worth of property options and procured a charter ? ” To this inquiry Jackson wrote in reply, ‘ that the consolidation is going through, and we have secured our charter, $4,000,000 capital, and the property to be taken over will aggregate over $1,000,000 valuation. We expect to pay for your property on April 1, and we are making our arrangements to that effect. Please have the deed prepared at once,” etc. On March 21 the defendant wrote to Jackson that owing to the absence of his counsel he would be unable to have the deed prepared before the following Monday, which he hoped would be in due time, and on March 30 he forwarded to the Union Trust Company the deed drawn to Murphey as grantee. In the letter accompanying it he stated that the deed was delivered to the trust company to be placed in escrow in accordance with the option given to Jackson, and he requested the trust company to give him a receipt to that effect. Accordingly, the Union Trust Company, by Clarence L. Harper, its president, sent to the defendant a receipt, stating therein that the deed was “ to be held in escrow under terms of agreement dated February 28,1901, between the depositor and Newton Jaclcson.”

In order to avoid the necessity of alluding to this correspondence later, we remark now that we find nothing therein, which, whether taken by itself or in connection with other evidence in the case, makes it relevant otherwise than as showing that the only terms and conditions under which the deed was deposited with and accepted by the Union Trust Company were those expressed in the option agreement of February 28th.

We come then to the evidence relating directly to the execution of the lease. On April 5, 1901, W. G. Audenried, Jr., acting for Eastern Milling and Export Company, wrote to the defendant as follows : “ We wired you to-day as follows: .‘Have exercised option to purchase your mill, and paid money and stock to Union Trust Company. Transfer the insurance policies to-day to Joseph C. Murphey, loss, if any, payable to II. C. Niles, mortgagee, as his interest may appear,’ from which you will note we have exercised the option on your mill, and shall expect you down here to make settlement. Please be sure to bring the insurance policies with you. We shall also expect you to operate the mill for sixty days further, and to that end have prepared a lease, which you can execute at the Union Trust Company, while here.” In compliance with this notice, the defendant, accompanied by his counsel, appeared at the Union Trust Company’s office on April 8, 1901, and then and there executed the lease upon which this action was brought— the premises being the same as those described in the deed to Murphey above referred to. The persons present at the execution of the lease were the defendant, his counsel Mr. Hays, Mr. Adams, who was the trust officer of the Union Trust Company, and Mr. Murphey. The first three testified as to what occurred at that time, but gave materially different versions. They substantially agree, however, in this, that a question was raised as to whether the deed was sufficient to include the railroad siding referred to in the option agreement, and that it was agreed that a deed expressly covering it should be made and executed by the defendant. After referring to this matter, the defendant further testified as follows : “ I read over this lease and said What’s the use for this — this property deal is not in operation yet, and this deed' may not go through, because these matters have not been adjusted yet ” (evidently referring to the matter of the siding that had beep discussed) “ and I do not care about leasing the mill. They said that will be all right, if the agreement won’t be carried out, the deed with this lease would be returned to me — under these conditions I signed the agreement for sixty days — the lease — for $ 100 rent for sixty days.” In a letter to the Union Trust Company dated May 81, 1901, to which a postscript dated June 7,1901, was added, the defendant wrote as follows : “ Enclosed please find deed for use of siding which is in connection with a deed of my mill property already passed. I have the insurance policies in course of transfer and if the conditions have been fulfilled, which I presume they have, kindly forward to me the stock and draft due me upon receipt of this and oblige.” In the postscript he says: “I just mailed deed to Mr. Niles, York, Pa., for approval.” The deed was executed on June 7, and in a letter of June 14, Adams, the trust officer of the Union Trust Company, acknowledged the receipt of it. In the same communication he said : “ Your letter of June 11th has also been received. We have delayed replying because we have been waiting for the Real Estate Title Insurance Company to pass upon this matter, and indicate to us that the title was clear, so that we might safely pay to you the consideration which we have in our hands, having received the same from Mr. Jackson, acting for the Eastern Milling and Export' Company, early in April.” He also stated that his company had been informed on that day that there was still a defect in the title to the mill, to remedy which quitclaim deeds from certain parties would be required, and requested the defendant to co-operate with Mr. Niles in having this matter closed up. “ As I said above,” he concludes, “ the consideration has been in our hands some weeks, and we should like to settle this matter as soon as possible.” What negotiations or correspondence took place in the interim does not appear ; but on June 19, the agreed consideration for his property, consisting of a check for 16,250, a certificate for 375 shares of preferred stock and a certificate for 375 shares of common stock of the Eastern Milling and Export Company, was forwarded to the defendant, which, in his letter of June 20, he acknowleged to be “ consideration in full for my mill property conveyed to Joseph 0. Murphey.” Furthermore, the lease was distinctly recognized by the defendant in his letter of July 5,1901, to the Eastern Milling and Export Company, in which he said: “ I received a bill for rent due on mill. Kindly consider this as an off-set in the settlement of my mill stuff on taking the mill over for operation;” and again in his letter of July 12, 1901, to the president of the company, in which he said: “ I do not care to rent for an indefinite time. Shall I operate it ” (the mill) “ in order that we may keep the trade together? ”

We need not take up time in discussing the question whether the defendant’s allegation of an oral promise made at the time the lease was executed is sustained by the quantity and quality of evidence that is required to affect a written instrument in that way. If the case turned upon that question, it might well be doubted whether the evidence would be sufficient for the purpose; for, it is to be noticed, the promise testified to by him is materially different from that testified to by Mr. Hays, and the testimony of both is in conflict with that of Mr. Adams. But assuming the verity of what the defendant testified to on that subject, the fact is plainly insufficient to affect his obligation to pay the stipulated rent from the date of the lease, inasmuch as when he had perfected the conveyance he had given, as he was bound to do by the option agreement, he was paid the full consideration, and subsequently acknowledged the binding force of the lease in the manner above stated.

But it is strenuously urged that the conditions upon which the deed deposited in escrow with the Union Trust Company was to be delivered by the depositary were not complied with, and that this fact was not made known to the defendant prior to his execution of the lease, but was kept concealed from him until after he had receipted for the consideration of the deed, and had surrendered to the Union Trust Company the receipt that company had given when the deed was deposited in escrow.

One particular in which it is claimed that the conditions were not complied with is, that the agreement that the preferred stock should be limited to such amount as should be necessary to purchase milling property, and that none should be issued for profit to any attorney, underwriter, promoter or trust company, was not kept. In support of this contention, attention is called to a transaction in May, 1901, in which it is claimed preferred stock was issued to J. R. Bucher for profit.' We need not go into the details of this or similar transactions, for it is plain that the agreement above referred to was neither a condition precedent, nor a condition subsequent. Whatever may be the remedy of the defendant for the violation of the agreement, it is not by avoiding his deed or the lease.

Another particular in which it is claimed that the conditions precedent were not complied with is, that the money consideration ($6,250), which was delivered to the Union Trust Company and by it delivered to the defendant, was not furnished by Jackson in return for preferred stock of that amount and an equal amount of common stock as a bonus, but was part of the proceeds of a temporary loan of $25,000, made to Eastern Milling and Export Company upon a mortgage in favor of H. C. Niles, executed on April 5,1901, by Murphey, by direction of the milling company, upon two properties taken into the combination — one being that described in the defendant’s deed. On July 1, 1901, a mortgage for $800,000 covering all of the properties that went into the combination was executed, and from the proceeds of that loan the temporary loan was paid. There was evidence admitted or offered from which a jury could find that the money paid to the defendant came from this temporary loan; also that the fact was not known to the defendant at the time he receipted for the consideration, as well as when he executed the lease; and further, it may be assumed, for the purposes of this discussion, that he would have done neither of these things had it not been for the representation, expressed or fairly to be implied, that the conditions upon which the title to his property was to pass had been complied with. But we find no evidence to sustain a finding that he did them under the inducement of representation that the money part of the consideration was derived by the milling company from a particular source, except as such representation is to be implied in the general representation above stated. Would these facts sustain a verdict that his action in the particulars referred to was induced by fraud — such a fraud as would enable him, upon discovery of the facts, and return or offer to return the money and shares of stock he had received, to a cancellation of the deed and the lease ?

An escrow is a written instrument, which by its terms imports a legal obligation, deposited by the grantor, promissor or obligor, or his agent with a stranger or third person, that is, a person not a party to the instrument, such as the grantee, promisee or obligee, to be kept by the depositary until*the performance of a condition or the happening of a certain event, and then to be delivered over to take effect: 16 Cyclopedia of Law & Procedure, 561. Where the future delivery depends upon the payment of money, or the performance of some other condition, and the grantee obtains possession of the deed fraudulently without performing the condition, he acquires at the most but a voidable title to the land described: Landon v. Brown, 160 Pa. 538; Dempwolf v. Greybill, 213 Pa. 163. If the condition precedent be expressed in writing, the construction of the writing is for the court. While the courts generally hold the grantee to very strict compliance with the conditions precedent to delivery, yet, in determining from the writing what they are, no strained construction is to be put upon the words in order to make that a condition precedent which was not clearly so intended by the parties. On the contrary, in the case last cited the rule was held applicable in the construction of such an instrument — indeed, in the construction of the very instrument now under consideration — that where words can be construed either as a condition, a reservation or a covenant, the latter construction is favored. It seems hardly necessary to resort to this general rule of construction, for the instrument declares in unequivocal terms that upon delivery of the considerations mentioned in the instrument the deed should be recorded and the property become the property of Jackson or the company designated by him. This was the express condition precedent to delivery; the contention that it was also intended to be a condition precedent that the money part of the consideration be derived by the milling company from Jackson in return for preferred stock of that amount, and not by loan from him or any other person, rests on very doubtful and uncertain inference at the best. It is not of sufficient strength to overcome or qualify the express condition above alluded to, or to enlarge its requirements beyond what its plain terms imply. This particular question need not be discussed further, because we regard it as having been authoritatively determined in accordance with the foregoing conclusion in Dempwolf v. Greybill. The learned trial judge there held that the instrument authorized the depositary to deliver the deed for recording when it received the money and shares of stock which were stated therein to be the “ satisfactory consideration ; ” and upon appeal it was declared that he was “ clearly right in the construction of the escrow agreement.” Hence, if we assume that the defendant executed the lease and subsequently acknowledged and affirmed its binding effect, and also accepted the money and shares of stock in full of the consideration stipulated in his contract, upon the faith of representations, express or implied, that the conditions precedent to the delivery of his deed had been fulfilled, he is not in position to avoid the deed or the lease, unless such representations were false, which they were not, or unless the source from which the milling company derived the money part of the consideration was fraudulently misrepresented to him to his injury, and of this we find no evidence.

Our conclusion upon the whole evidence is that no such fraud is established thereby, or could be inferred therefrom by a jury, as would entitle the defendant to have the lease in question either annulled or reformed. In arriving at that conclusion we have also taken into account some matters offered to be proved but which offers were rejected. As to the evidence rejected to which no allusion has been made, suffice it to say that we have considered these rulings, and the argument of appellant’s counsel upon the assignments of error in which they are embraced, and are of opinion that even if the evidence had been admitted, the result could not be different from what it is. There are other points that were mentioned in argument, amongst which are : the delay in seeking relief; the question whether the defendant made a proper tender, or was bound to make a tender of the shares of stock and the money consideration he had received ; the fact, that although on April 5 he had notice that a mortgage in favor of H. G. Niles had been or was to be placed on the property, he made no inquiry as to its purpose prior to executing the lease ; and the point that, owing to the insolvency of the company, the rights of creditors, and of others who with him put their properties into this unfortunate venture, are more or less involved in this effort to be relieved, from his obligation for the rent that had accrued. We will not discuss the evidence relative to these points, nor their bearing, because it would unduly prolong this opinion, and for the better reason that the decision of the case maybe rested upon the broader ground already stated.

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


author: Orlady, J.,

text:
    Jacoby’s Estate.

      Will — Construction—Charity.
    Testator provided by his will as follows: “The remaining portion of my estate is to be invested in mortgages so as aforesaid approved, and be known as the G. T. Jacoby Protestant Orphans' Relief Fund, and the net income arising therefrom paid to the various Protestant orphan asylums and institutions wherein orphans are cared for within the county of Allegheny, but only to such as are strictly under Protestant management and that teach the Protestant religion. Also a. share to the Concordia Home of Butler County, share and share alike." It appeared that the testator had been a resident of the county for many years, and must have known of many institutions which aided orphan children, but were not exclusively orphanages. It also appeared that the Concordia Home was not an exclusive orphanage. Held, that there was no error in distributing the fund to Protestant institutions that aided orphans, but were not exclusively orphanages.
    Argued May 8, 1907.
    Appeal, No. 214, May T., 1907, by tbe German Protestant Orphan Asylum, from decree of O. C. Allegheny Co., Sept. T., 1906, No. 337, dismissing exceptions to adjudication in Estate of George T. Jacoby, deceased.
    Before Ríce, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.
    The opinion of the Superior Court states the ease.

      Error assigned was in dismissing exceptions to adjudication.

      J. M. Hunter, with him Hermann F. Ruoff, for appellant.

      J. H Sterrett, of Patterson, Sterrett £ Acheson, rvith him George 0. Bargwin, Robert E. Stewart and Morton Hunter, for appellee.

      October 7, 1907:
   Opinion by

Orlady, J.,

By the ninth item of the last will of George T. Jacoby, dated February 3, 1894, it is provided :

“ The remaining portion of my estate is to be invested in mortgag’es so as aforesaid approved, and be known as the G. T. Jacoby Protestant Orphans’ Relief Fund, and the net income arising therefrom paid to the various Protestant orphan asylums and institutions wherein orphans are cared for within the county of Allegheny, but only to such as are strictly under Protestant management and that teach the Protestant religion. Also a share to the Concordia Home of Butler county, share and share alike. If by reason of death any of. said legacies should lapse by reason of death of the legatee before the principal is paid to him or her, then his or her share shall be added to the relief fund excepting only in the case of the children of Mary Douns. No asylum shall be entitled to its portion until due proof has been made that in it is taught the Protestant religion. The principal must not be impaired, as it is my desire so far as I am able to establish a permanent relief fund.”

The trustee of the fund appointed by the will has filed four accounts of its administration thereof. In the audit of the first three accounts the net income of the fund was awarded to the appellant and other claimants to this particular fund, and in an opinion filed to the first audit the construction of this bequest is carefully considered, and the distribution to this appellant and to the others was made in accordance therewith. This was followed in making the distribution of the second and third audits, in all of which the appellant acquiesced and received the amount decreed to it without further contention.

In the dispute now pending no new or different question is presented, and in the per curiam opinion filed it is stated: “ The questions involved in the exceptions of the German Protestant Orphans’ Asylum, in which it is claimed that only institutions which are exclusively orphan asylums are within the class of beneficiaries designated by the testator, were raised and discussed on the audit of the trustee’s first account, and for the reasons there given (Jacoby’s Estate, 51 P. L. J. 77), the exceptions are dismissed.”

The distribution of the fund now in court is made on the same basis, and it is so made for the same reasons as governed the prior one from which no appeal was taken, and in which the appellant participated. While the question is debatable as to whether the former adjudication by the same court, of the same subject-matter, and between the same parties, is res judicata (Lease v. Ensminger, 5 Pa. Superior Ct. 329 ; Guenther’s Appeal, 4 W. N. C. 41; Keech v. Rinehart, 10 Pa. 240 ; Kline’s Appeal, 86 Pa. 363; Old Man’s Home v. Penna. Institution for Instruction of the Blind, 17 W. N. C. 171), it becomes unnecessary to decide it in the view we take of the conclusion reached by the orphans’ court and the conceded facts.

It is to be presumed that the testator knew at the time his will was executed the character and administration of the affairs of the institutions in Allegheny county likely to participate in this bequest, and that they were under a particular control. He designated them as “ various,” and limits his bounty to such “ as are strictly under Protestant management and teach the Protestant religion.” It is manifest that his purpose was to aid orphan children in such institutions, and it requires the addition of material words, but which are not necessary to interpret his purpose, to confine and limit his beneficence to institutions “ as are incorporated or organized for the exclusive purpose of caring for and maintaining orphans.” Had he so intended it would have heen so stated. The only limitation is clearly and succinctly defined — orphan inmates of institutions under Protestant management — and it is not the policy of the law to restrict it further than the words reasonably require. The name' given to the fund, the fact that the only named beneficiary is not an exclusive orphanage, and that some institutions in existence at the time the will was executed admitted boys only, one colored children alone, another the orphans of Odd Fellows only; that the testator had been a resident of the county for many years, and, judging from his will, was interested in the welfare of orphans, and knew of many of such institutions, are all pertinent and found facts to aid in giving a practical effect to this bequest. It would be a strained and restricted construction to a bequest that was founded on a liberal and broad-minded design.

The decree is affirmed.