text:
    Adams v. Beaver Valley Traction Company, Appellant.

      Street railways — Passenger—Ejection from car — Damages—Punitive damages — Compensatory damages.

    1. Where a passenger in a street car after a controversy with the conductor about the fare leaves the car voluntarily at the request of the conductor, he will not be entitled to punitive damages in an action for wrongful ejection, if it appears that the conductor did nothing, except to give the passenger a push, and subsequently commanded him to leave the car in a violent and ungentlemanly manner.
    2. Exemplary or punitive damages are allowed only where the act complained of has been committed willfully and maliciously, or, in the absence of actual malice, where it has been committed under circumstances of violence, oppression, outrage, or wanton recklessness.
    3. Where a passenger seventy-eight years old is wrongfully ejected from a street car, and is compelled to walk a distance of nearly a mile and been subjected to some delay in making a connection to reach his final destination, a verdict in his favor for $100 will be sustained, although the trial judge committed error in instructing the jury that the passenger was entitled to punitive damages. The amount of the verdict shows that the erroneous instruction had no effect upon the jury. The error was therefore harmless.
    Argued May 11, 1909.
    Appeal, No. 52, April T., 1909, by defendant, from judgment of C. P. Beaver Co., Sept. T., 1907, No. 38, on verdict for plaintiff in case of Samuel Adams v. Beaver Valley Traction Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Prather, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    Plaintiff presented the following point:
    4. If you believe from the evidence that the plaintiff was a passenger on the car of the defendant company, and had duly paid his fare, and that the agent of the company being then engaged in his business as conductor of said car, compelled the-plaintiff to leave the car, the said conductor at the time making use of insulting language and menacing the plaintiff with angry threats and gestures, calculated to wound the feelings, and humiliate the plaintiff in the presence of others in the car, then you may, if you are so disposed, allow the plaintiff punitive damages in addition to nominal damages, or damages by way of compensation for breach of the contract of carriage. Answer. This point is affirmed. [1]
    5. Punitive damages are damages allowed by way of punishment of the wrongdoer. If, in your judgment, the defendant company should not only be required to pay nominal damages, or to make compensation to the plaintiff for any alleged breach of contract, but that the defendant should be required in addition to pay a further sum by way of punishment and as a warning to be more careful in the future, then you may allow punitive damages; but if you determine otherwise, then you will not allow punitive damages. Answer. This point is affirmed. [2]
    6. Should you decide to award punitive damages, you will first decide what damages flow from breach of the contract of carriage, if there was such breach, and then to those damages add whatever sum you allow as punitive damages, and the whole amount thus obtained will be your verdict. Answer. This point is affirmed. You will recollect, in finding punitive damages, that is, compensation added to your verdict for compensation for outlay — you must find, in order to allow punitive damages, that he was humiliated, and his feelings injured, and that he suffered this humiliation by reason of the conduct by the defendant company, or its servant; if you so find, you could allow punitive damages. [3]
    Verdict and judgment for plaintiff for $100.55.

      Errors assigned were (1-3) above instructions, quoting them.

      James L. Hogan, with him John M. Buchanan, for appellant.
    There was nothing in the testimony of either plaintiff or the conductor that would justify punitive damages: Phila. Traction Co. v. Orbann, 119 Pa. 37; Nagle v. Mullison, 34 Pa. 48; Pittsburg, etc., Ry. Co. v. Taylor, 104 Pa. 306; Rose v. Story, 1 Pa. 190; Amer v. Longstreth, 10 Pa. 145; Atherholt v. Erie Electric Motor Co., 27 Pa. Superior Ct. 141; Greenwood v. Union Traction Co., 30 Pa. Superior Ct. 488; Lake Shore & Michigan Southern Ry. Co. v. Prentice, 147 U. S. 101 (13 Sup. Ct. Repr. 261); Peterson v. Traction Co., 71 N. J. Law, 296 (59 Atl. Repr. 456); Hamilton v. Third Ave. R. R. Co., 53 N. Y. 25; Philadelphia, Wilmington & Baltimore Railroad Co. v. Rice, 64 Md. 63 (21 Atl. Repr. 97); Tomlinson v. Wilmington & S. R. Co., 107 N. C. 327 (12 S. E. Repr. 138); Fitzgerald v. Chicago, R. I. & P. R. Co., 50 Iowa, 79; Denver Tramway Co. v. Cloud, 6 Colorado App. 445 (40 Pac. Repr. 779).
    December 13, 1909:

      Lawrence M. Sebring, for appellee.
    It is the province of the court to determine whether there is any evidence to support an award of exemplary damages: Heil v. Glanding, 42 Pa. 493; Nagle v. Mullison, 34 Pa. 48.
    An assault and battery was committed on the plaintiff, without any justification whatever, and yet, in the absence of a technical assault and battery, courts allow punitive damages for wordy abuse of a passenger by a conductor: Texas, etc., Railway Company v. Tarkington, 27 Tex. Civ. App. 353 (66 S. W. Repr. 137). The Supreme Court of this state in Perry v. Pittsburg Union Passenger Railway Co., 153 Pa. 236, refused to set aside a verdict of $200 which included damages to the feelings.
   Opinion by

Head, J.,

For the purposes of this appeal the verdict of the jury has established that plaintiff was a passenger on the car of the defendant; that he had paid the fare which entitled him to be carried to a place called in the testimony the Junction; that the conductor of the car, mistakenly or wrongfully claiming that no fare had been paid but only a void transfer check tendered, demanded a second fare, and upon plaintiff’s refusal to pay it, ejected him from the car while it was yet a considerable distance from the Junction above mentioned. These facts established, it follows that the defendant had committed a breach of its contract of carriage. Its liability to compensate the plaintiff in damages according to a proper measure is but the legal consequence of the breach.

In so far as the verdict and judgment thereon establish its breach of contract and its liability to pay compensatory damages therefor, the defendant is not by this appeal complaining. It alleges, however, (a) that the learned trial court submitted to the jury the question of the plaintiff’s right to have punitive damages when the evidence was insufficient to warrant such a submission; (b) that the jury, because of this alleged error, actually punished the defendant by the imposition of such exemplary damages. If both of these propositions have been successfully maintained,' a reversal of the judgment would necessarily follow.

The nature of punitive damages, and the conditions under which they may be properly imposed, may be best exemplified by an excerpt or two from some of the many decisions on the subject. In Lake Shore, etc., Ry. Co. v. Rosenzweig, 113 Pa, 519, Mr. Justice Trunkey said: “The general rule in cases for negligence is that only compensatory damages can be given. Juries are not at liberty to go farther than compensation, unless the injury was done wilfully or was the result of that reckless indifference to the rights of others which is equivalent to a violation of them. There must be wilful misconduct, or that entire want of care which would raise a presumption of conscious indifference to consequences.” In Philadelphia Traction Co. v. Orbann, 119 Pa. 37, Mr. Justice Clark, in an elaborate and well-considered opinion on the subject, said: “Exemplary damages are allowed only where the act complained of has been committed wilfully and maliciously, or, in the absence of actual malice, where it has been committed under circumstances of violence, oppression, outrage, or wanton recklessness: Nagle v. Mullison, 34 Pa. 48. When there is no evidence which would fairly justify a jury in finding that the wrongful act was of the general character stated, the question of exemplary damages should not be submitted to the jury; in the absence of proof of these circumstances of aggravation, compensation merely is the rule. To leave the question of punitive damages to the jury when there is no evidence which would warrant a verdict for other than compensatory damages, or even to instruct them that they may find such damages as they may deem proper, is error: Pittsburg, etc., Ry. Co. v. Taylor, 104 Pa. 306; Rose v. Story, 1 Pa. 190; Amer. v. Longstreth, 10 Pa. 145. Therefore in Pittsburg, etc., R. R. Co. v. Slusser, 19 Ohio St. 157, where a passenger had been ejected from a train by mistake, or on misconception of his rights by the conductor, it was held not to be a proper case for exemplary damages, and upon that ground the judgment was reversed.”

In Greeney v. Penna. Water Co., 29 Pa. Superior Ct. 136, Orlady, J., speaking for this court, said: “But they (the jury) are not at liberty to go farther, than allow actual and compensatory damages, unless the evidence shows willful misconduct and a wanton invasion of the plaintiff’s rights, or any circumstance of aggravation or outrage. ... It is the duty of the court to submit the question of the kind of damages that may be given to the jury, and if there be no evidence of aggravation or oppression, then simple compensation is the rule.” See also Greenwood v. Union Traction Co., 30 Pa. Superior Ct. 488; Artherholt v. Erie Electric Motor Co., 27 Pa. Superior Ct. 141.

Turning then to the testimony, we find that the only evidence as to the manner in which the plaintiff was ejected was given by himself. In this respect he was not corroborated by the testimony of any other witness, although the car at the time contained several passengers, both men and women, whose attention would have been naturally invited to the occurrence, had there been any wanton or malicious abuse of a man of the age of the plaintiff. Taking then the testimony of the plaintiff himself on this point, and allowing to it all of the weight which the jury could fairly have given it, it seems to us that it in nowise measures up to those situations described in the foregoing excerpts where the question of punitive damages was properly submitted to the jury.

After describing the verbal controversy between himself and the conductor as to the payment of fare, the plaintiff testified as follows: “I says to him, 'if you put me off I will make you pay for it.’ Q. What was the manner of the conductor to you at the time of the conversation you have described? A. He was standing about in this manner (indicating) with his hands on the alarm bell, I suppose it is. The Court: Holding to the strap? A. Yes, to stop the car, and I says, ' Are you going to put me off? ’ He says, ‘ Yes I will, and he then came towards and pushed me back.’ Q. He pushed you back? A. Yes. I says, 'Mr. Conductor, don’t you put your hand on me again. If you do, we will get into a clinch. . . .’ He then got the bell and brought it down very hard, and that brought the car to a stop. He then told me to get off, and I got off. Q. What was the manner of his voice, the tone of his voice, his manner at the time he did those things? A. Very violent, ungentlemanly manner, uncouth. Q. You did get off? A. Yes, sir.” This is the whole of the testimony upon which the court submitted to the jury the question of punitive damages. We are unable to see in the light of the cases cited that this evidence furnished any warrant for the imposition of more than compensatory damages, and the learned trial judge was in error in not declaring to the jury as a matter of law that the plaintiff’s right to recover must be limited to compensatory damages.

It does not follow, however, that because of this technical error on the part of the learned trial judge, the judgment must be reversed. If it is reasonably apparent that the jury did not in fact go beyond the limits of compensatory damages and punish the defendant by the imposition of exemplary damages; or in other words, that the error was not harmful to the defendant, the judgment should be affirmed.

Had the learned trial judge, in submitting the case to the jury, properly instructed them that the plaintiff’s recovery must be limited to compensatory damages; what elements might they rightfully have considered in making up their verdict? In Perry v. Pittsburg Union Passenger Railway Co., 153 Pa. 236, the learned trial judge, in a case like the present, affirmed the following point: “That if the jury so believe they should find for the plaintiff a sufficient sum to compensate him for any loss of money and time suffered by him on account of the said trespass, also for any inconvenience and for any injury to his person and to his health, and also for the injury to his feelings and the humiliation inflicted on him by the said trespass.” This instruction having been assigned for error, the judgment of the lower court, where the verdict was double the amount of the present one, was affirmed.

In Moore on Carriers, p. 887, the rule is thus stated: “Where a passenger has been wrongfully and unlawfully expelled or ejected by the carrier from a train or car, he may recover in an action against the carrier, the amount of the fare to the place to which he was entitled to be carried, damages for the loss of time occasioned by the delay, and any other pecuniary loss necessarily caused thereby, and a reasonable compensation for the indignity, humiliation, wounded pride and mental suffering involved under and resulting from such wrongful expulsion.” That this is the rule that prevails throughout the various states of the Union is shown by the many authorities collated in the note to the case of Lindsay v. Oregon Short Line R. R. Co., 12 L. R. A. (N. S.) 184.

In the present case the plaintiff was a man seventy-eight years of age. The verdict, as already stated, has established that the conductor of the car wrongfully demanded of him the fare which he had already paid, and thus publicly put him in the attitude of one attempting to ride in a public conveyance without making compensation therefor. He was compelled to walk, according to his testimony, a distance of nearly a 'mile, and then subjected to some delay in making a connecting car to carry him to his final destination. Iri such a case some of the elements which would properly enter into a determination of the amount of the damages that should be awarded to him as compensation cannot be exactly measured in dollars and cents. The verdict was $100.55. In such a verdict we can see no response to the erroneous instruction of the court which permitted the jury to consider the question of punitive damages. Had the jury, under proper instructions-confining them to compensatory damages, rendered the same verdict, we cannot think any court would have felt constrained to set it aside on the ground that the jury had awarded punitive damages. If the judgment were to be reversed, the case would necessarily go back- to be tried before another jury, and we can see no reasonable ground upon which to predicate the assumption that a second verdict would be for a substantially less sum than the present one. We are therefore impelled to the conclusion that although the learned trial court fell into error in his instructions to the jury, such error is not reflected in their verdict, and therefore it turned out to be a harmless error for which the appellate court will not reverse.

Judgment affirmed.


source: Caselaw Access Project

author: Head, J,

license: Public Domain

text:
    Rankin’s Estate.

      Wills — Construction—Share of estate — Bequest.
    1. Where a. sister who is entitled to a distributive share in the estate of her deceased brother, makes her will by which she gives to her nephew “whatever my share of my brother’s estate may be,’’ and thereafter she. is paid $1,000 on account of her share, all of which she retains in bank until her death, with the exception of $40.00, and after her death the remainder of her share in her brother’s estate is paid to her executor, the nephew is entitled to an amount of money equal to his aunt’s .share in that portion of the estate of her brother which the latter’s will, or the law cast upon her at the moment of his death.
    2. In such a case the fact that when the aunt’s will was made the money representing her share was still in the hands of the brother’s administrator, whereas at the time of her death a part of it had come into her own hands, is immaterial.
    Argued May 4, 1909.
    Appeal, No. 132, April T., 1909, by Fannie Rankin, from decree of C. O. Indiana Co., Dec. T., 1907, No. 24, sustaining exceptions to auditor’s first report, and confirming auditor’s second report in Estate of Mary G. Rankin, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      December 13, 1909:
    Exceptions to report of William Banks, Esq., auditor. Before Telford, P. J.
    The facts appear by the opinion of the Superior Court.

      Errors ' assigned were in sustaining exceptions to auditor’s first report, and confirming auditor’s second report.

      J. W. Fisher, of Cunningham & Fisher, for appellant.
    Where bequests are of a generic character, that is to say, the bequests are of that which may be increased or diminished in the lifetime of the testator, they are subject to the Act of June 4, 1879, sec. 1, P. L. 88: Fidelity Ins., etc., Co.’s App., 108 Pa. 492.
    The legacy to William Rankin is specific, and is, therefore, subject to ademption: Smith’s App., 103 Pa. 559; Ludlam’s Est., 1 Parsons, 116; Walker’s Est., 3 Rawle, 229; Blackstone v. Blackstone, 3 Watts, 335; Fidelity Ins., etc., Co.’s App., 108 Pa. 492.
    The annihilation of a specific bequest, or such a change in its state as makes it another thing, annuls the bequest, for reasons paramount to consideration of intention: Blackstone v. Blackstone, 3 Watts, 335.
    And where a portion of the thing specifically bequeathed is ' disposed of or changed in the lifetime of the testator this acts as a pro tanto ademption: Alsop’s App., 9 Pa. 374; Ludlam’s Est., 13 Pa. 188; Hoke v. Herman, 21 Pa. 301; Smith’s App., 103 Pa. 559; Harshaw v. Harshaw, 184 Pa. 401.

      Ernest Stewart, for appellee,
    cited: Reynolds’s Est., 11 Pa. Dist. Rep. 387.
   Opinion by

Head, J,

Mary G. Rankin, the testatrix, made her last will and testament on November 24, 1905, and died on November 5, 1906. Robert Rankin, the brother of the testatrix, had died some time previous to the writing of the said will and his estate was in process of settlement. The said- testatrix, as one of his legal heirs, was entitled to a distributive share in his estate, although the record does not disclose the fractional portion of that estate to which she was entitled. On December 5, 1905, a few days after the date of her will, there was paid to her by the administrator of her brother’s estate, on account of her distributive share therein, the sum of $1,000. This sum she had deposited in bank to her credit, and $960 of it there remained until after her death. The settlement of her brother’s estate was not finally completed until a short time after her own death, when the final balance to make up her full distributive share was paid to her administrator. This amounted to $1,275.50, which, with the payment previously made to her in her lifetime, showed that the aggregate value of her share in her brother Robert’s estate was about $2,300.

Her will upon its face discloses the fact that the scrivener who wrote it was an illiterate person. It does not follow from this, however, that the language of her will is either unusual or ambiguous, or its meaning obscure. In the construction of wills it is of the first importance to keep in mind that outside of a few broad and well-known exceptions — to which we need not now advert — the policy of the state is to permit the individual citizen to dispose of his property according to his own wishes. His intentions are to be gathered from the will itself and the language used therein, and so long as this language is plain and free from obscurity, when we accept the meaning given to it in the common speech of the people, there is no necessity to resort to the aid of artificial canons of construction. In speaking of one of these rules, Chief Justice Mitchell, in Mulliken v. Earnshaw, 209 Pa. 226, said: “Like all artificial rules it had the constant tendency to become an arbitrary fetter instead of a mere instrument for the ascertainment of the testator’s intent. The policy of the later cases in this state, if not everywhere, is to get back to the true rule of looking only to the actual intent. There is no sound reason in the nature of things why the actual meaning of the person using the words should not be sought in the case of a Will exactly as it is in the case of a contract.”

The clause in the present will which gives rise to this contention is that in which the testatrix gives to her nephew, Wm. C. Rankin, “whatever my share of my brother Robert’s estate-may be.” What was her share in her brother Robert’s estate under the facts already recited? Certainly, according to the common understanding of men, her share was that portion of the estate of her brother which his will or the law cast upon her at the moment of his death. Whilst its exact value in dollars and cents could not then be determined, it was nevertheless a vested property interest, subject to all of the incidents of other like property. It could have been sold or assigned by her, attached for her debts, or bequeathed by her last will and testament. Whilst the value of this share might increase or diminish above or below what the heir, his assignee or his creditor, might estimate it to be, the share itself would remain unchanged and would continue to be the same thing that was cast upon the heir immediately on the death of the ancestor. The words used in the will, then, giving to them their common and accepted meaning, were aptly descriptive of certain property of the testatrix, and the extent of this property, independent of its value in dollars and cents, was the same, whether it all remained in the hands of the administrator of the ancestor, or whether it had in part been paid to the heir, in this case the testatrix.

Of course, the property which she devised or bequeathed by her will was her own property, regardless of the source from which that property came to her. We look to her will then but to see what portion of her own property she intended by the language quoted to bequeath to the appellee, and we are unable to see any reason why the words she used were not aptly descriptive of a definite ascertainable portion of her own estate. Had she in her will given to her legatee all of the property which she inherited from her brother Robert, or all of that portion of her estate which she derived from her brother Robert, there could have been but little 'doubt as to whát she intended to bequeath. The words she actually used, to wit, “whatever my share of my brother Robert’s estate may be,” we regard as synonymous with either of the former expressions.

We are not left without authority for the construction, which, after mature deliberation, we have placed upon the language of the testatrix, resulting from the interpretation of that language as it would be generally and ordinarily understood. From 7 Words and Phrases, 6473, 6474, where many judicial decisions of the word “ share ” are' collated, we quote the following: “The word ‘share’ ordinarily means a part or definite portion of a thing owned by a number of persons in common. It contemplates something owned in common by two or more persons, and has reference to that part of the undivided interest which belongs to some one of them. Turner v. Balfour, 62 Conn. 89. Again, share as used in statutes relating to the widow’s share, described a portion of the estate of the decedent which the law assigns to the widow: Ward v. Wolf, 56 Iowa, 465.” In 25 Am. & Eng. Ency. of Law, 636, it is said: “The word ‘share’ ordinarily means a part or definite portion of a thing owned by a number of persons in common.” If we follow these decisions we must conclude that -upon the death of the brother of the testatrix, his estate was owned in common by her and her coheirs, and her share in that estate, whatever its money value might after-wards be ascertained to be, was a fixed and definite thing, to wit, the portion of that estate which the law, or the will of her brother, cast upon her, and that portion, that fixed and definite thing, was aptly described by the expression “my share in my brother Robert’s estate.”

In Miles v. Wister, 5 Binney, 477, a testator bequeathed to each of his four children the sum of £400 in specie to be placed out at interest for their benefit until they should respectively attain the age of twenty-one years. He further provided that if any such child should die in his or her minority, the share of such child should be equally divided, etc. One of the children dying during minority, the question arose whether the bequest of its share carried the interest accruing on the investment or only the principal thereof, and it-was held in an opinion by Tilghman, C. J., that the expression included both principal and interest. In other words, all that would have gone to the deceased child as its portion:or share.

In Lewis’s App., 108 Pa. 133, it is said: “The several words share, part, portion, are very frequently used as synonymous. When applied to property acquired from one’s ancestor,' the word ‘portion’ is the most comprehensive that can be used. It is broad enough to include, and is intended to cover all the property or estate thus received. Thus ‘portion’ is defined in 2 Bouv. Law Dictionary, 701, to be that part of a parent’s estate, or of the estate of one standing in the place of a parent which is given to a child. . . . We cannot give weight to the fact that the word ‘share’ had previously been applied to the residuary estate. We have shown it to be synonymous with the word ‘ portion.’ ” The words “ portion ” and “ share ” are convertible terms, 1 Jarman on Wills, *309, and refer to parts of some general whole.

In Reynolds’s Est., 11 Pa. D. R., 387, the opinion was delivered by Judge Penrose, whose wide' learning and long experience in this branch of the law justly entitle his utterances to great weight. In that case the bequest was all “the property I inherited from my father.” In holding that this was a bequest of everything which the testatrix had actually received from her father, the learned judge says: “With regard to the subject of the gift but little need be said; Questions as to ademption can only arise where the legacy, in the form in which it is given, is not in existence at the death of the testator, — as in the case of a specific gift- of stocks or securities, or of a debt, or any article of property of a peculiar or designated kind. But here the gift to the brothers and sisters is not of that character. It is not of ‘the securities’ inherited from the father, or of property of any specific description, but ‘the property I inherit from my father.’ The word ‘ property’ is used without any qualification, in its most general sense; meaning all that came from her father as distinguished from what carné from any other source. A mere change of form in what she had thus ‘inherited’ does not change the source. Everything is given as to which the origin of her title or ownership was by inheritance from her father, and nothing short of actual loss or consumption in her lifetime can deprive the legatees of their right.” We can see no good reason why the language just quoted could not be with equal force applied to the will of the present testatrix. If, then, the testatrix, in her will used apt words to describe the portion of her estate she intended to bequeath to the appellee, how can it be successfully argued that this legacy had been adeemed, pro tanto, because she, in her lifetime, reduced to possession a part of that, to wit, her share in her brother’s estate, which had been hers from the moment of his death, and remained hers until the moment of her own death? The destruction of a legacy, perhaps to a favored legatee, is a conclusion that ought not to be hastily reached, and the decisions indicate that where the substance of the thing bequeathed remains, changes in its form are of but little consequence.

In Shupp v. Gaylord, 103 Pa. 319, where a testator gave to B, a legacy of $500 a year, “and the said yearly payment of five hundred dollars is to be paid out of rents accruing under and from the lease of coal to the Wilkes-Barre Coal and Iron Company, if the said rents fail not to be paid,” it was held by Judge Rice, presiding in the court below, and affirmed by the Supreme Court that “the legacy to B was not extinguished by the forfeiture of the original lease by the decree of the circuit court, but is payable out of the rents of the specific property of the testator made the subject of that lease, if there are sufficient rents produced to pay it.” In Black’s Est., 223 Pa. 382, it was held that “where a testator bequeaths the proceeds of two bonds to legatees and it appears that during his lifetime the bonds were paid off, the proceeds invested in a mortgage, and after testator’s death the mortgage was paid off and the proceeds came into the hands of the accountant, the legatees are entitled to the proceeds and a claim that the legacies were adeemed, cannot be sustained.”

We agree of course with the learned counsel for the appellant that the will of the testatrix speaks only from the moment of her death, but the expression used in it just as certainly described a portion of her property at that moment as it did on the day on which the will was written. If at the date when she made hqr will the words she used therein would have been aptly descriptive of a fixed and ascertainable portion of her estate, how did they lose their descriptive force because, before her death, she had reduced to possession a part of her property, as to which before then she had but a right of possession? The fact that when her will was made the money representing her share was still in the hands of the administrator, whereas at the time of her death a part of it had come into her own hands, does not seem to us to be sufficient to turn us to a different conclusion. Her share in her brother’s estate, with the exception of the $40.00 drawn from the bank and expended, had neither been aliened, consumed nor destroyed down to the moment of her death. It remained in substance the same thing at the time of her death that it was at the moment she inherited it or at the date her will was written. After having given the most careful consideration to the able argument so earnestly pressed upon us by the learned counsel for the appellant, we are still forced to the conclusion that the construction of the will of the testatrix adopted by the learned court below was the correct one, and that in affirming the decree made, we are but carrying into effect the intention of the testatrix as she expressed it in language of her own choice.

Decree affirmed and appeal dismissed at the costs of the appellant.


author: Head, J.,

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

      Practice, O. C. — Findings of fact — Appeals—Gift.
    1. Where a daughter claims the ownership of household goods as a gift from her deceased father, a finding of fact by the orphans’ court adverse to the claim will not be reversed on appeal, where it appears that the only evidence in support of the claim was the deposition of a woman ninety-four years old, which was general in character without any identification of the goods, and it also appears that the goods remained in the possession of the decedent until his death, and that the question of the gift had been passed upon in another proceeding in which no appeal had been taken.

      Executors and administrators — Bond-—Cost of entering bond — Act of June 24, 1895, P. L. 248.
    2. The Act of June 24, 1895, P. L. 248, allowing an administrator or trustee credit for money paid for entering a bond has no application to the case of a defaulting trustee who was compelled by his own neglect of duty to furnish a bond, or be removed from office.
    Argued April 20, 1909.
    December 13, 1909:
    Appeal, No. 32, April T., 1909, by-Elizabeth M. Fuller, from decree of O. C. Fayette Co., Dec. T., 1906, No. 29, dismissing exceptions to adjudication in Estate of Smith Fuller, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Exceptions to adjudication. Before Steel, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to adjudication.

      E. C. Higbee, of Sterling, Higbee & Matthews, with him Robinson & McKean and Smith & Brownfield, for appellant.

      W. J. Sturgis, of Howell, Sturgis & Morrow, for appellees.
   Opinion by

Head, J.,

The appellant is a daughter of the late Dr. Smith Fuller, and one of the executors named in his will which was admitted to probate more than fifteen years ago. From a number of references in the record itself and in the briefs of counsel, it appears that the settlement of this estate has been the subject of much contention between the parties interested, and a number of questions collateral to the present inquiry have already reached the orphans’ court and been determined in that tribunal.

The first ground of appeal in the present case is that the learned court below erred in holding that the appellant had failed to establish, by competent and sufficient evidence, her allegation that her father in his lifetime had made a gift to her of all his household goods. The conclusion thus reached resulted in a surcharge against the appellant, who was the accountant below, of $527.02.

The substance of the evidence before the orphans’ court on this subject may be briefly stated thus. After the death of the decedent, an inventory, as required by law, was made of all his personal property. As already stated, this appellant and her brother, the late Hon. Frank M. Fuller, were the executors. The inventory included all of the household goods with the other property of the decedent and they were duly appraised. These household goods passed into the immediate possession of the appellant’s coexecutor. At the time of their inventory and appraisement as part of the estate of the decedent no claim was put forward, as we understand it, by this appellant, that she was the owner of these goods. When Frank M. Fuller .filed his first account, he claimed a credit for portions of these goods taken by himself and his brothers, John and William, aggregating about half the inventoried value. As early as 1894 this appellant filed her own account in which she charged herself “with the amount of the inventory of the individual property of said decedent,” and, as against this charge, claimed credit for “all the appraised property which passed into the exclusive control of Frank M. Fuller, Esq., Exr., being the whole of said inventory except the cash in bank, etc.” This account seems to have remained' of record without any disposition having been made of it until in 1897, when the appellant presented a petition to the orphans’ court setting forth that no auditor had ever been appointed to pass upon the exceptions to the account, and that it .had never been confirmed; that the account contained some errors which the petitioner desired to correct, and she therefore asked leave to withdraw the account for that purpose. . The petition in no way specified the nature of the errors referred to. The leave prayed for was given and the account withdrawn.

Meantime the appellant had filed exceptions to the account of her brother and coexecutor, denying his right to credit for the value of the household goods taken by himself and his brothers on the ground that these goods were not a part of the estate of the decedent, having been given to her by her father in his lifetime. In support of her claim in that prpceeding she offered the deposition, taken under rule of court, of Mary A. Getzendanner, a woman ninety-four years of age, then residing in New York City. The strength of that deposition is contained in the following excerpt from it relating to a declaration alleged to have been made by the decedent some eighteen years before the taking of the deposition. “He said, ‘I am glad to have her home (referring to the appellant). She is a dear good girl. She went up to the attic and brought down all the goods which had been moved up there since my second marriage and had the furniture all renovated. She is not only taking good care of my house but of me as well, and I have given her all of my household goods.’ ” In that proceeding the learned trial judge of the orphans’ court reached the conclusion that the exceptions filed by this appellant had not been sustained, and they were dismissed, and the account in that respect at least confirmed. From that decree, as we understand it, no appeal was ever taken.

When the appellant, some years after she had withdrawn her first account, filed the one now under consideration, she charged herself with no part of the household goods, and exceptions asking that she be surcharged with their value were filed. At this hearing the appellant offered in evidence the deposition already referred to which had been taken in the former proceeding. Upon objection, it was rejected by the learned judge below on the ground that it had not been taken in the pending proceeding and did not come within sec. 1 of the Act of March 28, 1814, 6 Sm. L. 208. There being thus no evidence to support the alleged gift, the exceptions were sustained and the appellant directed to be surcharged. Upon a reconsideration of the question in an opinion accompanying the final decree, the learned judge seemed to have reached the conclusion that he was in error in rejecting the deposition, but after giving it due weight, as if it had been admitted, he further concluded under all the evidence that the appellant had not succeeded in establishing the gift on which she relied. This being a conclusion of fact, reached by the auditing judge, ought not to be disturbed by an appellate court except in a clear case of manifest error. It is true he did not see or hear the witness, and in this respect we have before us just what he had before him, but this testimony, in the light of all the surrounding circumstances, was not by any means conclusive. The witness was a very aged person. The single declaration of the decedent referred to had taken place many years before. It was general in character, and there was nothing in it to identify the property now in question as having been included in the gift, if one were made. Considering the further facts that Dr. Smith M. Fuller appeared to be in possession and control of this property down to the time of his death, the former determination of this question in another proceeding where the decree remained unappealed from, and the facts relating to the inventory and account already referred to, we are unable to say that the court below committed any reversible error in finding as a fact that no valid gift of this property had been made. The first assignment of error must therefore be dismissed.

In 1898 a petition was filed by one of the heirs of the decedent setting forth that the executors had neglected to file their accounts and perform the duties imposed upon them by the act of assembly. An answer was filed by this appellant, but for some reason, not disclosed by the record, this proceeding reached no termination until 1906 when the orphans’ court made a decree requiring the appellant as executrix to give a bond in the sum of $100,000, conditioned for the prompt and faithful performance of her duties as executrix, and with the provision that if she failed to give such bond and to carry out the directions of the will before a date specified, her letters should be vacated and she should be removed from her office. In obedience to this decree, made apparently under the directions of the act of March 29, 1832, she filed her bond with the Citizens’ Title & Trust Company for surety. When she filed the present account she sought to take credit for the sum of $500 paid to this company for becoming her surety, claiming that she was entitled to this credit, in addition to her own compensation, under the Act of June 24, 1895, P. L. 248. Upon objections being filed to this item of credit, the orphans’ court held that the estate was not bound for the repayment to her of this sum, although the fact that she had paid it had been given due consideration in fixing the amount of her compensation.

We do not think it necessary to consider or discuss the extent to which, if at all, the compensation of an executor, administrator or trustee, as heretofore regulated by law, would be affected by the act of 1895, in cases where it was intended to be applicable. We are satisfied that it was not intended to apply to the case of a defaulting trustee who was compelled by his own neglect of duty to furnish a bond to the end that he might not be entirely removed from his office. The act is entitled, “An act to allow receivers, trustees, etc., to include in the lawful expenses of executing their trusts such reasonable sum paid the company, etc.” This seems to us a clear intimation that the act was intended to apply only in cases where trustees who were faithfully performing the duties of their trust were obliged by the letter of the statute or by an order of the court made in pursuance thereof to give security. It cannot be argued with any convincing force that a trustee, who had first abused his trust by failing to perform its duties to the manifest injury of the trust estate, could then saddle it with the costs of procuring a bond made necessary only by his own delinquency. If the appellant is required to pay the expense of her bond out of her own pocket, it will be but charging her with the consequences of her own neglect of duty. She cannot compel her brothers and sisters or their children to share with her the penalty of her own neglect of duty when they were in nowise responsible for it. The remaining assignment of error must therefore be dismissed.

Decree affirmed and appeal dismissed at the costs of the appellant.


text:
    Fuller’s Estate
    (No. 2).
    Argued April 20, 1909.
    December 13, 1909:
    Appeal, No. 33, April T., 1909, by Elizabeth M. Fuller, from decree of O. C. Fayette Co., March T., 1907, No. 43, dismissing exceptions to adjudication in Estate of Smith Fuller, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
   Opinion by

Head, J.,

For the reasons set forth in the appeal of this same appellant at No. 32, April Term, 1909, ante, p. 417, the decree is affirmed and the appeal dismissed at the costs of the appellant.


author: Morrison, J.,

text:
    Barnett v. Fein, Appellant.

      Bailment — Lease—Option ■to purchase.

    1. A lease of a chattel with an option to purchase is a bailment.-
    2. An innocent purchaser for value of a leased chattel takes no other title than that of the bailee; and if the bailee defaults in performing the covenants of the lease, the bailor may recover the chattel by an action of replevin, from the purchaser.
    Argued Oct. 13, 1909.
    Appeal, No. 151, Oct. T., 1909, by defendants, from order of C. P. No. 3, March T., 1909, No. 3,941, mailing absolute rule for judgment for want of a sufficient affidavit of defense in case of William Barnett et ah, trading as William Barnett & Sons, v. Charles Fein and William I. Greenfield.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Replevin to recover certain machinery.
    Rule for judgment for want of a sufficient affidavit of defense. Before McMichael, P. J., and von Moschzisker, J.
    The opinion of the Superior Court states the case.

      December 13, 1909:

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

      David. Bortin, with him Jacob Singer and Emanuel Furth, for appellants.
    The gist in replevin is the present title or ownership: Lehman v. Gill, 19 Lancaster Law Rev. 279.
    Briefly stated, plaintiffs’ claim is that the chattels are owned by them and that they only parted with possession by leasing. The defendants’ answer is that the plaintiffs are not the owners and that they purchased from one to whom the plaintiffs sold: American Soda Fountain Co. v. Egbert, 14 Pa. Dist. Rep, 426.

      Owen J. Roberts, with him Garrett A. Brownback, for appellees.
    If plaintiffs have title under the contract and the right to possession, a bona fide purchaser for value, and without notice, gets no better nor higher rights than the lessee: Miller Piano Co. v. Parker, 155 Pa. 208; Miller v. Douglas, 32 Pa. Superior Ct. 158; Heisley v. Economy Tool Mfg. Co., 33 Pa. Superior Ct. 218.
   Opinion by

Morrison, J.,

This is an action of replevin. The plaintiffs’ declaration sets forth that they own certain laundry machinery in their business as manufacturers thereof; that by lease dated September 10, 1908, the plaintiffs leased these chattels to one Constantine Dellas. A copy of the lease is attached to the plaintiff’s declaration as exhibit “A.” The affidavit of defense does not deny that this was a valid lease of the property. It is next averred that on November 30, 1908, Dellas, the lessee, assigned the lease to one Mike K. John with the consent of the plaintiffs and that Mike K. John, in an agreement with the plaintiffs, indorsed on the said lease, undertook and assumed all the payments and conditions stated in the said lease. A copy of John’s agreement with the plaintiffs assuming the said lease is attached to the statement as exhibit “B.” The declaration, therefore, avers the ownership of the property in the plaintiffs, with the right to possession and the actual possession of the same in John, by virtue of the lease, the assignment thereof, and the written agreement by John with the plaintiffs, the lessors. The declaration then avers that John assigned his interest under the lease to Mannes and Horewitz, and that they subsequently, without the consent or knowledge of the plaintiffs, assigned their interest under the lease to the defendants. The declaration then avers a knowledge on the part of the defendants that at the time the property was assigned and delivered to them, that it was leased to Mike K. John by the plaintiffs. It is then averred that there is rent in arrear and possession demanded of the chattels as provided in the lease.

That these averments on their face, undenied, would entitle the plaintiffs to recover, and would support this judgment, no argument or authority is needed.

The affidavit of defense does not deny the original ownership of the goods by the plaintiffs, but denies that the plaintiffs are the present owners, and avers that the defendants are the owners because they “obtained title thereto by purchase for good and valuable consideration and without notice of the rights or equities of plaintiffs therein, as hereinafter set forth.” The affidavit then denies any knowledge on the part of defendants of the existence of a lease dated September 10, 1908, between the plaintiffs and Dellas, or any other lease covering the articles and chattels named in the statement of claim, and then proceeds: “But on the contrary, avers that defendants have been informed and believe that the chattels above named were originally purchased by one Mike K. John (not stating from whom), and that as a result of said purchase, the said Mike K. John is indebted to the plaintiffs in the sum of $90.00.” It is not stated how or why this indebtedness of $90.00 resulted from the original sale. The affidavit then avers that on February 24, 1909, Israel Mannes and Charles Horewitz sold and delivered to the defendants the articles claimed in plaintiffs’ statement of claim for a consideration of $275, which included a number of other articles, fixtures, machinery, etc., not claimed by the plaintiffs; that at the time of said sale the said Mannes and Horewitz produced to the defendants a bill of sale of the said articles from Mike K. John to them, duly executed by him and witnessed; of which sale defendants are informed plaintiffs had knowledge. That the said Mike K. John was fully aware and consented to the sale by Mannes and Horewitz of these chattels to defendants, although there was at the time due him by Mannes and Horewitz the sum of $270; that a copy of the bill of sale of these goods to defendants is hereto annexed and made á part of this defense. The affidavit then denies that defendants knew that said chattels were leased to Mike K. John and that he assigned the lease to Mannes and Horewitz; but on the contrary avers that the defendants are informed and believe that no lease was assigned to Mannes and Horewitz by John or anyone else, and that there was an outright sale of these chattels by John to Mannes and Horewitz, which sale took place with the knowledge of the plaintiffs. The affidavit then closes with the usual averment of its truth to the best of deponent’s knowledge, information and belief and which defendants expect to be able to prove at the trial of the case.

We regard this affidavit as entirely insufficient to prevent judgment. It does not .deny that the plaintiffs owned the property in question; does not deny that they leased it to Dellas, nor does it deny that Dellas assigned his lease to Mike K. John. It is true the defendants do deny knowledge of said lease and they aver that they have been informed and believe that the said chattels were originally purchased by one Mike K. John, but they do not state when or where or from whom he purchased, said articles nor by what means they were informed that the chattels above named were originally purchased by John. The averment that at the time Mannes and Horewitz sold the goods to the defendants, a bill of. sale of the same was produced from John to Mannes and Horewitz, duly executed and witnessed, of which sale defendants are informed plaintiffs had knowledge, is not material. It has already been seen that John held the goods under the original lease from plaintiffs to Dellas and there is no sufficient averment in the affidavit of defense to place any other or better title in John than, he took under the Dellas lease. Therefore, the making of an absolute bill of sale by John for property that he only held as a bailee, did not pass an absolute title to the same. Suppose the plaintiffs did have knowledge that John had made such a bill of sale, they would not thereby lose their title to the property, unless on the ground of estoppel, and the affidavit avers nothing to estop the plaintiffs from asserting their title.

The final averment that the defendants did not know that the property in question was held by John under a lease and that he assigned the lease to Mannes and Horewitz, and the averment that no lease was assigned but that there was an outright sale of these chattels by John to Mannes and Horewitz, is wholly immaterial. It is an unquestioned proposition of law in Pennsylvania that a man cannot make title to personal property which he does not own: Miller Piano Co. v. Parker, 355 Pa. 208; Lecky v. McDermott, 8 S. & R. 500.

The declaration squarely avers a bailment with an option to purchase. The court below held that the lease created a bailment of the property in question. A multitude of cases might be cited in support of that conclusion, but we only cite a few of them: Cobb v. Deiches & Co., 7 Pa. Superior Ct. 252; Potter v. Stetson & Co., 13 Pa. Superior Ct. 627; Harris v. Shaw, 17 Pa. Superior Ct. 1.

We discover nothing in the affidavit of defense placing any title in the defendants, except that of a bailee, which, at most, comes to them through Dellas and John. .But the transfer of the lease down to defendants was without the consent of the plaintiffs, and, therefore, the terms of the lease were so violated in that respect, as well as by the nonpayment of the rent, that the bailors had the right to retake the property wherever they found it. That a purchaser for value, without notice, from a bailee obtains no other title but that of the bailee is settled law in this state. The bailee has no legal title to convey to such purchaser. At most, such purchaser would get no better title than that of the bailee. But if the bailee had failed to comply with the terms of the lease, under which he held the property, the bailors had the right to retake the property under the very terms of the bailment. To assert this right was ■ not to invoke a forfeiture, but to enforce a contractual obligation expressed in words and implied in law: Jones v. Wands, 1 Pa. Superior Ct. 269; Cobb v. Deiches & Co., 7 Pa. Superior Ct. 252. Upon the proposition that an innocent purchaser from the bailee could not get the bailor’s title and right of possession to the property, we also cite: Miller Piano Co. v. Parker, 155 Pa. 208; Miller v. Douglas, 32 Pa. Superior Ct. 158; Heisley v. Economy Tool Mfg. Co., 33 Pa. Superior Ct. 218, and cases therein cited.

The affidavit of defense being clearly insufficient, the assignments of error are overruled and the judgment is affirmed.


text:
    Ballingall to use, Appellant, v. Kite.

      Justice of the. peace — Philadelphia magistrate — Jurisdiction— Amount — Interest—Relinquishment of interest.

    1. Where the record of a magistrate in Philadelphia county shows that the magistrate granted judgment for $100 with interest and costs, without specifying the amount of interest, and that this was done in the presence of the plaintiff and without any relinquishment of interest by the plaintiff, and subsequently the case is appealed and the court of common pleas on a rule to dismiss, and after depositions taken, finds as a fact that the plaintiff demanded before the magistrate an amount in excess .of the latter’s jurisdiction, the Superior Court on an appeal from an order dismissing the proceedings will not reverse the finding of the lower court, and will sustain the order made by it.
    2. The rule that a plaintiff in a suit before a justice of the peace cannot make a demand of less than the sum due him, in order to give the magistrate jurisdiction, does not apply to interest, as the plaintiff may relinquish that as it is no part of the cause of action to be litigated; but if he does not relinquish it, and permits the magistrate to enter judgment in his presence for principal and interest, bringing the aggregate amount above the magistrate’s jurisdiction, he will not be able to sustain the .proceedings when removed to the common pleas on appeal. The relinquishment of interest cannot be made for the first time in the , common pleas.
    Argued Oct. 14, 1909.
    Appeal, No. 179, Oct. T., 1909, by plaintiff, from order of C. P. No. 3, Phila. Co., Dec. T., 1903, No. 3,193, making absolute rule to dismiss proceedings before a magistrate in case of Peter Ballingall, to use of United States Audit Company, v. Edward J. Kite and Earl E. Kite.
    December 13, 1909:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from judgment of a magistrate.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order making absolute rule to dismiss the proceedings.

      William H. Peace, for appellant.
    The test is, the amount of plaintiff’s demand before the magistrate. The depositions on behalf of plaintiff, uncontradicted, show no claim for interest was made before the magistrate: Peter v. Schlosser, 81 Pa. 439; Collins v. Collins, 37 Pa. 387.
    The plaintiff was entitled to have his statement amended: Linton v. Vogel, 98 Pa. 457.

      O. Von Phul Jones, for appellees.
    The order made was proper: Rogers v. Ratcliffe, 23 Pa. 184; Stroh v. Ulrich, 1 W. & S. 57, Peter v. Schlosser, 81 Pa. 439; Zimmerman v. Snyder, 9 Pa. Superior Ct. 201.
    The lack of jurisdiction in the magistrate cannot be cured by amendment of the statement in the common pleas: Quigley v. Quigley, 10 W. N. C. 388; Owen v. Shelhamer, 3 Binney, 45.
   Opinion by

Morrison, J.,

The legal plaintiff, in December, 1903, brought suit against defendants before a magistrate to recover the sum of $100 for services rendered them by him as an accountant. The magistrate entered judgment in favor of plaintiff for $100, with interest and costs. Defendants appealed to the common pleas and plaintiff filed a statement in the common pleas concluding as follows: “On the 24th day of June, 1901, he, plaintiff, received a payment of $100 on account leaving a balance due thereon of $100 which he claimed with interest from June 24th, 1901, and which sum he avers is justly owing and payable to him by defendants without any deduction or set-off.” It should here be noted that the interest claimed on the $100 would be from June 24,1901, till December, 1903, when the suit was commenced before the magistrate, so that the interest at the date of the judgment by the magistrate would amount to more than $12.00.

The plaintiff’s original claim was $241.15. The defendants disputed this amount and the plaintiff deducted $41.15 and the defendants then paid $100, which left, according to plaintiff’s theory, the sum of $100, with interest, due and unpaid. After the plaintiff filed his statement of claim in the common pleas, the defendants moved to dismiss the case on the ground that the sum claimed was greater than the magistrate’s jurisdiction. It is conceded that in Philadelphia the magistrate only had jurisdiction to the amount of $100.

Upon the defendants’ petition and motion, the court granted a rule on the plaintiff to show cause why the case should not be dismissed. Thereupon, the plaintiff obtained a rule to show cause why his statement of claim should not be amended by striking out from the second page thereof the words, “with interest from the 24th day of June, 1901,” and substituting therefor, “with interest from March 28th, 1904.” When these rules came before the court below, the following conclusion was reached:

“The jurisdiction of the magistrate to hear the claim of the plaintiff in. this case depended entirely upon the amount which was demanded before him. The transcript shows the sum of $100 demanded for work and labor done and no date was given, and after the hearing the magistrate gave judgment for $100 with interest. The defendants in their rule to dismiss the proceedings averring that interest was claimed before the magistrate, and the plaintiff denying that in his answer and also in his petition to amend, an issue of fact is raised which it is difficult for the court to determine without further evidence. If there is evidence in support of the contention of either of the parties, it should be submitted to the court in the form of depositions. See the case of Collins v. Collins, 37 Pa. 387. Both rules are therefore continued until February 23, 1909, with leave to either party to take depositions, in support of their respective contentions.”

It appears that the plaintiff then took depositions for the purpose of showing to the court that he only claimed $100 before the magistrate and that his statement of claim'filed in the common pleas claimed interest from June 24, 1901, by mistake. It will be noted that it does not affirmatively appear of record, that the plaintiff actually demanded interest on the $100 claimed before the magistrate. But it is perfectly clear from the magistrate’s record that he granted judgment for $100, with interest, and costs. It is very clear that the plaintiff was present when the magistrate granted the judgment and that he did not at any time relinquish the interest while the case was before the magistrate. It is just as clear that if the judgment included interest from any date prior to the entry thereof, then the magistrate’s judgment was on a demand for a sum greater than his jurisdiction.

The pinch of this case is, What was the sum demanded before the magistrate? In Collins v. Collins, 37 Pa. 387, the Supreme Court, by Mr. Justice Woodward, said: “The sum demanded is the test of jurisdiction. To get at that, we look at the transcript of the justice and the narr. on the appeal, and the practice is to receive parol testimony also; and from all these sources to determine the jurisdiction by the matter of fact. If it appears that the plaintiff’s demand really exceeded $100, and that he involved the justice in litigation beyond his jurisdiction by remitting the excess, it is of great importance to declare against the jurisdiction, else the defendants’ rights may be sacrificed before he is aware of it, as was shown by Judge Rogers in Stroh v. Ulrich:” 1 W. & S. 57.

It clearly appears that the lower court, after the first argument, acted on the authority of Collins v. Collins in continuing the case, in order that depositions might be taken. From the record before us we must presume that the lower court found as a matter of fact that the plaintiff’s demand before the magistrate exceeded $100. As a general proposition, this court will not review matters of fact based on oral testimony and depositions taken in the court below, and the weight thereof and the credibility of the witnesses, but will assume that the lower court reached a correct conclusion as to the fact, unless the contrary is made very clearly to appear.

In Rogers v. Ratcliffe, 23 Pa. 184, in a case involving the amount in controversy in a suit in the court below, the Supreme Court said: “There is nothing on the record to show that the fact was otherwise than as found by the court. The depositions produced before the court, on the hearing of the motion in relation to the costs, form no part of the record; nor can they be brought here by a bill of exceptions. . . . For this reason the rule was established many years ago, in relation to this section of the act of assembly, that ‘the decision of the common pleas is not to be treated as erroneous unless the fact which impeaches it appears on the face of the record:’ Spear v. Jamieson, 2 S. & R. 530.” See also Righter v. Rittenhouse, 3 Rawle, *273; Piper's App., 20 Pa. 67; Murphy v. Flood, 2 Grant, 411; Kirk’s App., 28 Pa. 185; Robinson v. Narber, 65 Pa. 85.

It is settled law that if the amount due plaintiff is in excess of $100, he cannot make a demand of less than that sum in order to give the magistrate jurisdiction: Stroh v. Ulrich, 1 W. & S. 57; Peter v. Schlosser, 81 Pa. 439; Zimmerman v. Snyder, 9 Pa. Superior Ct. 201. This rule does not apply to interest, as the plaintiff may relinquish that as it is no part of the cause of action to be litigated. But it must be relinquished before the magistrate.

From what is before us, of which we can legally take notice, we are convinced that the lower court found that the plaintiff’s demand exceeded the jurisdiction of the magistrate on ample evidence. There is nothing to show that the magistrate made a clerical error in the entry of his judgment or that the transcript is not a correct record of the proceedings. No evidence whatever was given on this subject. As the transcript also recites that the plaintiff was present when judgment was given publicly, it becomes a conclusive finding of the magistrate that interest on that claim was not relinquished, and on this view, it is not material that the record does not show that interest was claimed. If the judgment was publicly entered in the presence of the- plaintiff that, “after hearing proofs and allegations, judgment given publicly in favor of plaintiff for $100, with interest and costs,” the plaintiff ought to have relinquished the interest or to have at least protested against the judgment including interest. In the common pleas case of Quigley v. Quigley, 10 W. N. C. 388, it was well said by the court: “ There is nothing to show that the interest was relinquished. It was as much a part of the amount due plaintiff, until relinquished^ as the principal. The justice added it and the plaintiff is affected with knowledge of his action in the premises.”

The plaintiff contends that the transcript shows that he only claimed $100, but it is the real amount of the claim which is important. It is to be presumed that before the magistrate the plaintiff testified that the defendant owed him $100, and this under a contract made at a certain time and for work done at a certain time thereunder. Therefore, the allowance of interest was a legal conclusion, unless it was relinquished by the plaintiff. The fact that the amount of the interest was not computed and stated in the magistrate’s judgment is not material- as that is certain which can be reduced to a certainty: “Id certum est quod certum reddi potest.” It is of no importance how small an amount of interest the judgment would include, because any sum would bring the claim above $100.

Another circumstance which must have strongly tended to persuade the court below that the plaintiff’s claim before the magistrate was for $100, with interest from the time that sum became due, was the deliberate filing of the plaintiff’s statement of claim in the court below for $100 “which he claims with interest from the 24th day of June, 1901, and which sum he avers is justly due and owing him by defendants without any deduction or set-off.”

We regard the law as settled that á plaintiff may remit or relinquish interest which he could claim on a cause of action, but if his suit is brought before a justice, he must relinquish the interest there and such relinquishment cannot be made for the first time in the common pleas. If the justice had no jurisdiction by reason of the claim before him for debt and interest exceeding $100, jurisdiction cannot afterwards be given in the common pleas by relinquishing interest there. In Owen v. Shelhamer, 3 Binney, 45, Yeates, J., said: “The cause of action must exist at the commencement of the suit, and cannot be varied by subsequent circumstances.”

In Moore v. Wait, 1 Binney, 219, the judgment recovered before the justice was for $88.00, with interest, which brought the whole amount to $104. On appeal to the common pleas, the verdict for the plaintiff was for $112, the additional interest making the difference. The judgment was arrested on the ground that the transcript showed that the justice had no jurisdiction and that all subsequent proceedings were a nullity.

We conclude from the whole record, including the opinion and judgment of the court below, that the court reached the conclusion that the plaintiff claimed judgment before the magistrate for $100, with interest from June 24, 1901, and that the magistrate’s judgment meant that the plaintiff was entitled to collect that amount with costs. After giving most careful consideration to the able argument of plaintiff’s counsel, and the authorities cited by him, we cannot see our way to convict the court below of error in so finding.

It is not necessary to discuss the question of the plaintiff’s right to amend his statement of claim, filed in the lower court, because if he claimed more than $100 before the magistrate, an amendment of his claim to $100 and relinquishing interest in the common pleas would not help him.

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


text:
    Miller v. Eichberg, Appellant.

      Master and servant — Salesman—Commission on sales — Profits— Case for jury.

    In an action by a salesman against his employer to recover compensation for services, it appeared that the plaintiff received a salary from the defendant, and had in addition a contract which provided as follows: “It is further agreed that should the total sales for the year exceed $50,000” the defendant should pay the plaintiff “a further remuneration of 5% on such excess, provided, however, that the total sales should show a profit of 20% average, or total profit of $10,000.” Plaintiff testified that the defendant refused to furnish him the cost prices of goods, and from time to time told him to sell at the prices given him, and that if he did so sell he would be safe in having a sufficient margin of profit on such sales to earn his commission. Plaintiff sold goods to the amount of $63,000. The defendant claimed that the profits were to be ascertained by taking the difference between the cost of goods plus the total expense of conducting the business, and the gross receipts. Plaintiff claimed that profits meant the difference between the cost price of the goods and the selling price. There was evidence that the defendant had at times adopted this construction of the contract. Held, that the question as to the meaning of the contract was under all the circumstances a question for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued Oct. 12, 1909.
    Appeal, No. 137, Oct. T., 1909, by defendants, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1908, No. 119, on verdict for plaintiff in case of Simon Miller v. Maurice H. Eichberg et al. trading as the Paper Mills Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover compensation as salesman. Before Kinsey, J.
    The facts arc stated in the opinion of the Superior Court.
    At the trial Simon Miller was asked this question:
    Mr. Miller: “Q. Did you ever have any conversation with the defendants in winch they offered you stock in the company they were going to incorporate?”
    Objected to by Mr. Levi as irrelevant.

      “ Q. When did you have any conversation with the defendants in regard to your becoming a stockholder in that company?”
    Objected to by Mr. Levi as irrelevant.
    “Q. Did you have any conversation with the defendants in which they asked you to become a stockholder of an intended corporation? A. They did. Q. When was that? A. That was in April, and it was in December. Q. What year? A. 1907.”
    Objected to by Mr. Levi.
    The Court: As to April, that will be excluded; as to December, as bearing upon another branch of this case, I will admit it.
    Exception for defendant. [6]
    “Q. What was said by Mr. Eichberg or Mr. Hirsh? A. Mr. Hirsh said he had a man that had a lot of money, and he would want to get incorporated — the Paper Mills Company. He says, ‘They will have plenty of money.’ He said, ‘Simon, you have been in our employ so long, you know the business from A to Z. We can’t afford to leave you go out. Why not take stock with us?’ I said, ‘ Mr. Hirsh, it is impossible for me to take stock, for I have not got any money. My weekly earnings — I have already obligated myself, I have a family at home depending upon me. ’ I said, ‘ I can’t take any stock. ’ He said, “ Never mind that, we will take so much money out of your monthly salary, and pay up on the stock.’ He said, ‘ I know you will make anywheres from eight to ten per cent besides your salary, and then you are liable to put your feet on my desk and be in the same boat that I am.’ ”
    The Court: “Q. That was the conversation with whom? A. Mr. Hirsh, a partner with Mr. Eichberg, one of the members of the Paper Mills Company.”
    Defendant presented these points:
    1. It is incumbent upon the plaintiff to establish to the satisfaction of a jury that the defendants made an average profit of twenty per cent, or $10,000, upon sales aggregating $50,000, made by the plaintiff for the account of the defendant during the year 1907, before the plaintiff would be entitled to receive any commission upon any sales made by him in excess of the sum of $50,000. Answer. The first point of the defendants is refused. [1]
    5. That under all the evidence, the jury should find a verdict in favor of the defendants. Answer: The fifth and last point is refused. [5]
    Verdict and judgment for plaintiff for $569.10. Defendants appealed.

      Errors assigned were (1,5) above instructions, quoting them, and (6) rulings on evidence, quoting the bill of exceptions.

      Julius C. Levi, for appellants.
    The word “profit,” as used in the contract sued upon, means net profit; in calculating profit, all expenses, including cost of selling as well as cost of manufacturing, must be deducted: Lepore v. Twin Cities Nat. B. & L. Assn., 5 Pa. Superior Ct. 276; Goodhart v. Penna. R. R. Co., 177 Pa. 1; Mackey v. Millar, 6 Phila. 527; Last v. London Assurance Corporation, L. R. 10 App. Cases, 438; Penn v. Whitehead, 17 Gratton (Va.), 503; Rubber Co. v. Goodyear, 9 Wallace, 788; Hersh v. Central Ry. Co., 74 Pa. 181; Welsh v. Dusar, 3 Binn. 328.
    The employer’s refusal to disclose to the salesman the cost prices does not entitle the latter to recover in this case.

      Harry M. Miller, for appellee.
    The defendants are estopped from setting up that plaintiff’s sales have not shown twenty per cent profit by their repeated refusals to disclose to him the cost of the goods, coupled with assurances that if he sold at the prices given him, his sales would show a profit of twenty per cent: Hess v. Ins. Co., 38 Pa. Superior Ct. 158; Silliman v. Whitmer, 11 Pa. Superior Ct. 243; s. c., 196 Pa. 363; Paine v. Bank, 194 Pa. 403; Sprigg v. Trust Co., 10 Pa. Dist Rep. 267; Comes v. Beezer, 51 Pitts. L. J. 94; Plotts v. Warburton, 20 Pa. Superior Ct. 496.
    The word “profits” used in the contract, is used in its commercial sense to indicate “the advance in the price of goods sold beyond the cost of purchase: ” Rogers-Ruger Co. v. McCord, 115 Wis. 261 (91 N. W. Repr. 685); Mayer v. Nether-sole, 71 App. Div. (N. Y.) 383; Morris v. Shepard, 53 Atl. Repr. (N. J.) 172; Manchester Paper Co. v. Moore, 104 N. Y. 680 (10 N. E. Repr. 861); Flagler v. Hearst, 62 App. Div. 18; Eyster v. Centennial Board of Finance, 94 U. S. 500.
    December 13, 1909:
   Opinion by

Morrison, J.,

This is an action in assumpsit brought by the plaintiff against the defendants, based on two separate written contracts, between the parties, one for the year 1907, and the other for 1908. It is conceded by counsel for defendants that the jury found in their favor as to the contract for the year 1908, and as to all salary under both contracts. Therefore, this appeal only raises questions as to the right of the plaintiff to commission under the contract of 1907. This contract provided for a fixed compensation per month to the plaintiff and also his reasonable expenses, and then closed with the following paragraph, to wit:

“It is further agreed that should the total sales for the year exceed $50,000, party of the first part will pay party of the second part a further remuneration of 5% on such excess, provided, however, that the total sales should show a profit of 20% average or total profit of $10,000.”

The whole controversy in this appeal hinges on the construction of this clause of the contract. The record contains numerous points and assignments of error, but, we think, the questions involved can be fairly considered under the three heads clearly stated by counsel for plaintiff, in his argument, as follows:

“First. The defendants, having made a contract with the plaintiff to pay him a commission on excess sales, if his total sales showed a profit of 20%, and having both at the making of the contract and during its life, ordered the plaintiff to sell at the prices given him, and stated that if he would so sell, he would be safe in having a sufficient margin of profit on such sales, to earn his commission, are the defendants now estopped to set up that although plaintiff did sell according to such instructions, his sales did not realize 20% profit, and they are, therefore, not bound to pay him a commission?

“Second. Does the word ‘profits’ as used in the contract mean ‘net profits’ such as are understood in a partnership accounting or the sale value of a business, viz: The difference between the cost of goods, plus the total expense of conducting the business and the gross receipts; or does it mean, under the circumstances of this ease, and as construed by both the conduct and the words of the parties, the difference between prime cost (that is, the difference between the cost of the goods on their floor ready to sell) and the selling price to the customers?

“Third. Each party, placing a different interpretation on the word ‘profits,’ and there having been a course of dealing between the parties and conversations between them, which shed light upon their mutual interpretation of that word, was it not necessary for the court to leave it to the jury to say what the parties meant by using that word in the contract?”

Under the peculiar wording of the clause of the contract under consideration, and the evidence in the case, the learned court could not, in our opinion, as a matter of law, give a binding instruction as to the meaning of the language used in regard to the twenty per cent profits, the five per cent com-, mission, etc. If, in fact, the defendants refused, on request by plaintiff, to furnish him the cost prices of the goods and from time to time told him to sell at the prices given him and that if he did so sell he would be safe in having a sufficient margin of profit on such sales to earn his commission, and the plaintiff actually sold $63,000 worth of goods during the year, then although the sales did not realize to the defendants twenty per cent profit, they ought to be estopped from refusing to pay the commission on the amount in excess of $50,000. If we are correct in this conclusion, then the court was right in refusing defendants’ point (first assignment), because, if the defendants were estopped from setting up a defense of profit which prevented the plaintiff from recovering his five per cent commission, then the defendants were not entitled to an affirmance of said point.

There is sufficient evidence to warrant the jury in finding that the plaintiff relied on the defendants’ statements as to the profits he would make, and that he made extra efforts on that account to sell over $50,000 worth of goods. In this connection it should be noted that the contract did not require the plaintiff to sell over $50,000 worth of goods, but the inducement held out to him to increase his sales was the promise of the five per cent on the amount sold in excess of $50,000. We think the question of estoppel was in this case and that it was properly submitted to the jury under the conflicting evidence.

“Having induced action by another on a belief in a given state of facts, it is unjust to permit him who induced the action to deny the facts and strip the action of the protection which they would have afforded. But one who has not been misled cannot invoke this doctrine in his behalf:” Rice, P. J., in Silliman v. Whitmer & Sons, 11 Pa. Superior Ct. 243, 265; see also Plotts v. Warburton, 20 Pa. Superior Ct. 496, and cases therein cited.

We will next consider the meaning of the word “profits” as used in the contract. It must be conceded, as a general proposition, that the word “profits” has a fixed and definite meaning and imports the net amount made after deducting any proper expenses incident to the business. And again, it is said, the usual, ordinary and correct meaning of the word “profit” is the excess of receipts over expenditures: Lepore v. Twin Cities National Building & Loan Assn., 5 Pa. Superior Ct. 276.

In Goodhart v. Penna. R. R. Co., 177 Pa. 1, the Supreme Court (p. 15) said: “Profits represent the net gain made from an investment or from the prosecution of some business after the payment of all expenses incurred.” There can be no doubt about the meaning of the word when applied to a partnership accounting or the sale value of a business. This would mean the difference between the cost of goods, plus the total expense of conducting the business, and the gross receipts. But in the present case, the language of the contract when viewed in the light of the testimony and the construction by the words and actions of the parties, it is not clear that the contract did not mean the difference between the cost of the goods in the defendants’ store ready to sell and the selling price to the customers. Each party to the contract, when the time for settlement arrived, placed a different interpretation on the word “profits,” and there having been a course of dealing between the parties and conversations between them upon the subject of the plaintiff’s profits, and the contention of the plaintiff not being clearly illegal or in contradiction of the contract, we think it was proper for the court to submit to the jury what the parties meant by profits as used in the contract.

The evidence shows that the plaintiff frequently requested from defendants the cost prices, evidently, so he could figure the profits on the sales he made and that repeatedly defendants told him he could go ahead and sell at the prices given him and he would be safe. If the plaintiff’s version of his conversations with the defendants on the subject is correct, and the jury evidently so found, then it is unreasonable to suppose that at the time the defendants had in mind the numerous items of expense for freights, rebates, salary and other expenses now contended for by them. On the other hand, if the contract meant what plaintiff testified he thought it did, the difference between cost price and selling price, the defendants’ statements to him were reasonable and in accordance with the meaning of the contract as it must have been found by the jury. In addition to this, the evidence shows that the defendants had a system whereby when an order was received from the plaintiff, it was pasted on a slip, and upon such slip there was immediately marked, by a member of the firm, the cost price of said order. This clearly seems to indicate a method of comparison between the cost price of the goods in the store and the selling price of the same by the plaintiff. To adopt the defendants’ contention as to what deductions should be made from the profits on the plaintiff’s sales required them to go to their books of account, at the end of the year, and this would seem to be a method which was not in contemplation at the time the contract was executed. We think the question of what the parties meant by the use of the word “profits” was not, alone, a legal one for the court, but that it had to be submitted to the jury under all of the evidence, and that it was properly so submitted.

In view of the narrow question involved in this controversy, we do not deem it necessary to discuss the several assignments of error seriatim. The learned counsel for appellant contends that the court below committed reversible error in admitting the evidence quoted in the sixth assignment. It must be conceded that so much of this evidence as related to the formation of a corporation and the taking of stock therein by the plaintiff might have been excluded, but we cannot see that this evidence did any harm to the defendants. The remainder of the evidence quoted, bearing on the compensation that the plaintiff might earn working for the defendants under the proposed contract, was relevant and competent, and therefore this assignment cannot be sustained as a whole, and it must be overruled. If the evidence first above referred to had been assigned for error standing alone, a different question might have been raised.

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


text:
    Barber v. Miller, Appellant.

      Principal and agent — Real estate broker.

    Where a real estate broker’s employment is by its terms not exclusive, and his commissions are made conditional upon the actual procuring of a signature to a lease and of a down payment thereon, commissions are not earned by the broker by merely bringing together the owner of the property and a prospective tenant.
    Argued Oct. 7, 1909.
    Appeal, No. 44, Oct. T., 1909, by defendant, from order of C. P. No. 2, Phila. Co., Sept. T., 1908. No. 1,772, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Edward Barber et al. v„ George Miller.
    December 13, 1909:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover commissions for renting real estate.
    Rule for judgment for want of a sufficient affidavit of defense. Before Sulzberger, P. J.
    The opinion of the Superior Court states the case.

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

      Francis Chapman, of Chapman & Chapman, with him S. Spencer Chapman, for appellant.
    The law is that if a broker enter into negotiation with an intending purchaser and bring him into contact with the vendor and then after the purchaser has concluded not to buy, other persons induce him to buy, the broker has no right to a commission: Earp v. Cummins, 54 Pa. 394; Brodhead v. Pullman Vent. Co., 29 Pa. Superior Ct. 19; Henderson v. Sonneborn, 30 Pa. Superior Ct. 182; Kifer v. Yoder, 198 Pa. 308.
    The plaintiffs did not earn their commission by bringing into contact two people who had theretofore been in treaty with each other. Their employment required more than this: Hartley v. Anderson, 150 Pa. 391; Black v. Snook, 204 Pa. 119; Masterson v. Masterson, 121 Pa. 605; Burchfield v. Griffith, 10 Pa. Superior Ct. 618.

      George P. Rich, for appellees.
    Where a real estate broker has commenced negotiations with a purchaser, the owner cannot, while such negotiations are pending, take it into his own hands and complete it, either at or below the first price limited, and then refuse to pay the commissions: Gibson’s Est., 161 Pa. 177; Seabury v. Fidelity Ins., etc., Co., 205 Pa. 234.
   Opinion by

Morrison, J.,

This is an action in assumpsit brought by plaintiffs to recover commissions as brokers. The declaration alleged that the defendant employed plaintiffs to rent No. 1306 Chestnut street; that they offered it, among others, to the Crane Ice Cream Company, who did not lease; that defendant then directed them to offer to the-Crane company No. 1310 Chestnut street, also owned by him; that they did offer the property No. 1310 Chestnut street and procured an offer from the Crane company of $15,000 per annum for five years; that the offer was accepted and plaintiffs prepared leases which were in accordance with the agreed- conditions and approved by defendant; that pending the execution of the lease the defendant came in contact with the Crane company and rented the property to it for the same rent and term by reason of which defendant became indebted to plaintiffs for the agreed commission.

The question in this case is, could the court below, on the declaration and the affidavit and supplemental affidavit of defense legally grant judgment against the defendant thereby depriving him of a jury trial?

In the opinion filed, the learned court below appears to have assumed that the contract between the plaintiffs and the defendant was contained in the letters of June 30, 1908, and July 1,1908, copies of which letters are embraced in the plaintiff’s declaration. An examination of the affidavits of defense leads us to the conclusion that the court was not warranted in this assumption. Let us see what the contract was as averred in the affidavits of defense. Upon this question the appellants’ counsel have very fairly summarized the averments contained in their affidavits of defense as follows, to wit:

“That the defendant was the-owner of two properties, No.’s 1306 and 1310-Chestnut Street; that he had been negotiating a contract with the Crane Ice Cream Company prior to employing plaintiffs; that he first tried to rent 1308 and then 1310 Chestnut-street to the Crane Company and that he asked the plaintiffs to try to interest the manager of the Crane Company in 1310 Chestnut street and that they thereupon wrote the letter contained in the statement which did not contain the whole agreement and was not the real agreement; that it was clearly agreed that their employment was not exclusive and that their commission was only to be due if they secured a tenant, 'the consummation of a lease by the obtaining the signature thereto and a down payment thereon;’ that they did not obtain the execution of a lease by the Crane Company or a down payment, and that the Crane Company refused, to execute the lease; that plaintiff’s negotiation with the Crane Company having ended and they then offering the property" to other persons, defendant employed one Deakyne who negotiated the lease de novo and finally consummated it and was paid therefor.”

The learned court holding that the affidavits averting, in substance, the above showed no defense, made absolute a rule for judgment. The averments of fact in the affidavits so far as they are relevant and material, must, for present purposes, be accepted as verity: Brooks v. Keller, 173 Pa. 615.

Now assuming as averred that the plaintiffs’ employment was not exclusive and that the undertaking of the plaintiffs was the actual procuring of the signature to a lease and the making of a down payment, the court was not warranted in holding that the contract of employment between the plaintiffs and the defendant was to bring together the defendant and another who might subsequently enter into a bargain. In the opinion the court says: “It was not the plaintiffs’ duty or their contract to prepare a lease or to be present at its execution. All they had to do was to bring the landlord and the tenant together, and as, when they were brought together, they agreed, there can be no logical reference of the act of agreement to an undescribed and perhaps indescribable influence of the alleged second agent in the case.” This seems to be a misunderstanding, by the court, of the contract as averred in the affidavits of defense. It entirely ignores the fact that the defendant had been negotiating with the Crane Ice Cream Company prior to his employing the plaintiffs and it further ignores the fact that the contract was not to bring the parties together, but it was for the execution of a lease and the securing of a down payment thereon. It cannot be contended that the plaintiffs brought the landlord and tenant together, nor that they secured the execution of a lease or a down payment. The court evidently considered the contract as bringing the case within the rule of Keys v. Johnson, 68 Pa. 42, where Mr. Justice Sharswood said: “Brokers are persons whose business it is to bring buyer and seller together. They need have nothing to do with the negotiations of the bargain. ... A broker becomes entitled to his commissions whenever he procures for his principal a party with whom he is satisfied, and who actually contracts for the purchase of the property at a price acceptable to the owner.” But the concluding sentence of Justice Sharswood’s opinion recognizes that the rule would be different where there is something special in the contract of employment, or the circumstances of the case, to preclude the broker from recovering commissions. The contract of employment in the present case, as averred in the affidavits of defense, was clearly more than the bringing together of the owner of the property and a prospective tenant. The defendant and the ice cream company had been together negotiating prior to the employment of the plaintiffs by the defendant. If the affidavits sufficiently aver, as we think they do, that the plaintiffs were to secure the execution of a lease and to secure a down payment, it must be conceded that they failed to earn their commission, on this record, as a matter of law.

It is further averred in the affidavits of defense that the negotiations between the plaintiffs and the ice cream company had fully and finally ended in failure. That the plaintiffs then began to offer the property to other persons for rent, and it is also averred that at no time did the plaintiffs have the exclusive right to rent the property. It is also averred that the lease between the defendant and the ice cream company was finally negotiated and consummated by Deakyne who received his commission therefor from the defendant.

In this opinion we assume that the same principles of law which govern the claims of brokers for commissions on sales of real estate will apply to claims for leasing or renting real estate. The law is well settled that if a broker negotiates with an intending purchaser and brings him into contact with the vendor, then after the purchaser has concluded not to buy, the broker has no right to commission. This proposition is sustained by Earp v. Cummins, 54 Pa. 394, opinion by Woodward, C. J. In that opinion we find the following: “ But if the services of the broker, whatever they be, fail to accomplish a sale, and several months after the proposed purchaser has decided not to buy, he is induced by other persons to reconsider his resolution, and then makes the purchase as the consequence of such secondary or supervening influence, the broker has no right to a commission.” The same principle is recognized in the following cases: Brodhead v. Pullman Ventilator Co., 29 Pa. Superior Ct. 19; Henderson v. Sonneborn, 30 Pa. Superior Ct. 182; Kifer v. Yoder, 198 Pa. 308. Under the facts,averred in the affidavits of defense the court was not warranted in holding, as matter of law, as to the plaintiffs, that, “ all they had to do was to bring the landlord and the tenant together, and as, when they were brought together, they agreed, there can be no logical reference of the act of agreement to an undescribed and perhaps indescribable influence of the alleged second agent in the case.”

“Where a contract provided for payment for services in procuring a purchaser for real estate or effecting a sale, such services are not rendered by submitting a proposition' from a party with whom the owners had been negotiating:” Syllabus of Hartley v. Anderson, 150 Pa. 391.

In Black v. Snook, 204 Pa. 119, the defendant admitted substantially the agreement as claimed by the plaintiff but averred, contrary to the contention of the plaintiff, that the latter had not the exclusive right to dispose of the property, and that the defendant sold it. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained. In that ease the Supreme Court said: “The question at issue, therefore, was one of fact, and having been properly submitted to the jury, the judgment is affirmed.”

In the present case the questions of whether the plaintiffs’ contract was to procure the signing of a lease and the making of a down payment and whether they actually accomplished this or it was done by another after their undertaking with the defendant had ended, must, under the averments of the affidavits of defense, be submitted to a jury: Masterson v. Masterson, 121 Pa. 605; Burchfield v. Griffith, 10 Pa. Superior Ct. 618. See also the recent case of Turner v. Baker, 225 Pa. 359, opinion by Mr. Justice Elkin.

The assignments of error are sustained and the judgment is, therefore, reversed, with a procedendo.