text:
    Taylor’s Estate.
    February 28, 1908:

      Auditor — Finding of facts — Review—Decedents’ estates.

    A finding by an auditor that a person claiming against the estate of a decedent was in fact not a creditor, if based on sufficient evidence and confirmed by the orphans’ court, will not be disturbed by the appellate court in the absence of manifest error.
    Argued Nov. 18, 1907.
    Appeal, No. 235, Oct. T., 1908, by Richard Turner, from decree of O. C. Chester Co., dismissing exceptions to auditor’s report in Estate of Thomas Taylor, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of Thomas S. Butler, Esq., auditor.
    The opinion of the Superior Court states the case.

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

      A. M. Holding, with him Charles H. Edmunds, for appellant.

      H. H. Oilkyson, with him Joseph H. Baldwin, for appellees.
   Opinion by

Beaver, J.,

This is the familiar case of a report of an auditor, distributing the funds arising from the estate of a decedent, confirmed by the court, which, as has been declared times innumerable, will not be disturbed, except for manifest error.

The claim of the appellant was based upon the advance of money, as he himself testified, to his mother-in-law, evidenced by a receipt of hers, dated April 6, 1879, for $500, and a check to her order for $852.23, dated September 7, 1885. He says: “ I loaned this money to Mrs. Jane Taylor, the widow of Thomas Taylor, deceased,” and later, “I simply loaned it to Mrs. Jane Taylor. I cannot say [in answer to a question as to the character of the obligation against Thomas Taylor’s estate], as it did not concern me, bnt I suppose I was influenced in making the loan to help them out of the debt.” To help whom and what debt are not distinctly stated. The effort is made to prove that the advance was made to help pay a debt of the estate of Thomas Taylor, but the dates, at least as to the principal payment, are clearly against such a conclusion. The debt of the estate of the decedent, held by Mundell, was fully discharged, January 12, 1883, and a bond of Jane Taylor and Quinton Taylor to Alexander Kennedy, for money borrowed in April, 1883, could not have been used in the payment to Mundell,'and, even if the amount of the check of the appellant to Jane Taylor in 1885 was used, in discharge of the indebtedness to Kennedy, although that date does not correspond with any payment to him, it was a debt of the obligors and not of the decedent’s estate. The appellant was not, under any view of the case, entitled to subrogation, as chimed by him. He paid nothing to any person having a claim against the estate, and the principle upon which he would be entitled to subrogation does not in any way apply.

The appellant’s argument throughout is based upon the assumption that his money was advanced in relief of the estate of the decedent and. that he, therefore, comes within the principle of Haverford Loan & Bldg. Assn. v. Fire Assn., 180 Pa. 522; but this, as the auditor found, and as has already been shown, is a mistake. He paid nothing in relief of the estate, but advanced his money to the widow of the decedent personally.

This being the case, the agreements of Margaret Taylor and Eva Taylor Hoff that out of the proceeds of the sale of said real estate, after the several costs and expenses incident to the sale had been paid, there shall be paid to the Rev. Richard Turner, D. D., the sum of $1,400, together with interest thereon at the rate of five per cent, per annum from April 1, 1903, and for the purpose of securing the payment of the said sum of $1,400, we and each of us, hereby authorize and empower the executor or administrator, or any other person or party charged with the duty of settling the affairs of the said estate, to pay to the said Rev. Richard Turner, D. D., the said sum, with interest as aforesaid,” were based upon a misapprehension, the recital in the said agreements being 'that: “Whereas there is now due and payable by the estate of the said Thomas Taylor, deceased, to the said Rev. Richard Turner, D. D., the sum of $1,400,” etc. If this fact had been true, there would have been a moral, if not a legal, obligation to support the agreement, but the auditor having found, as we think very properly, that the estate of Thomas Taylor was not indebted in any way to the appellant, the consideration of the agreement utterly failed, and the parties thereto had the right to revoke the same. The auditor, therefore, was justified in finding that “The agreements entered into with Rev. Richard Turner by certain of the heirs are nudum pactum, because without consideration of either benefit to the promisors or detriment to the promisee. The authority therein to pay the debt is revocable.”

The facts, as found by the auditor, which are fully sustained by the testimony, support his conclusions of law, and these, having been confirmed by the court below, make it practically obligatory upon us to assent thereto.

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


source: Caselaw Access Project

author: Morrison,

license: Public Domain

text:
    Commonwealth v. King, Appellant.

      Criminal law — Embezzlement—Indictment—Act of March 31, 1860, sec. 113, P. L. 382 — Good character — Evidence.
    Where an indictment under sec. 113 of the Act of March 31, 1860, P. L. 382, charges in one count that the defendant converted or appropriated trust funds with intent tor defraud, and another count adds to the charge a failure to pay over on demand, the court may properly direct that the defendant shall be tried on both counts. The averment of refusal to pay on demand in one of the counts may be regarded as surplusage. In such a case, however, the commonwealth may prove demand and refusal to pay over as evidence of conversion to defendant’s own use with intent to defraud.
    On the trial of an indictment undér sec. 113 of the Act of March 31, 1860, P. L. 382, the defendant cannot rebut the intent to defraud by showing possession and ownership of property of sufficient value to repay the sum alleged to have been embezzled.

      On the trial of an indictment for embezzlement defendant presented a point as follows: “ Evidence of good character is positive evidence, and may of itself by the creation of a reasonable doubt produce an acquittal.” The answer was: “Evidence of previous good character is to be regarded as substantive proof, and as such, evidence upon which a reasonable doubt of guilt may rest. It should be observed, however, that there comes a time in the life of every criminal when he commits his first offense and when he leaves the high plane upon which walks the upright, law-abiding citizen.” Held, that the answer, while not above criticism, was not ground for reversal.
    Argued Nov. 11, 1907.
    Appeal, No. 6, March T., 1908, by defendant, from judgment of Q. S. Lycoming Co., March T., 1907, No. 10, on verdict of guilty in case of Commonwealth v. Augustine W. King.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for embezzlement. Before Hart, P. J.
    The opinion of the Superior Court states the case.
    Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.

      Errors assigned were (1) refusal to quash the indictment; (2) in directing trial on the fourth and fifth counts; (3, 4) in refusing to admit evidence as to the defendant’s ability to pay back the money he embezzled; (5-10) excerpts from the charge; (11) answer to defendant’s point on the question of good character.

      W. C. Gilmore and Otto G. Kaupp, with them Seth T. McCormick, for appellant.
    — It is well settled that, unless the pleader is relieved by statute from exactness, the averment of ownership is necessary in indictments for embezzlement: Com. v. Haggel, 7 Kulp, 10.
    Appellant contends that the learned court below erred in not requiring the commonwealth to elect upon which of said counts she would proceed to trial when requested by the defendant that such election should be made: Com. v. Mentzer, 162 Pa. 646.
    Evidence of the pecuniary condition of the defendant, at, before and during the time of alleged embezzlement is competent: United States v. Camp, 10 Pac. Repr. 226; Com. v. Kaufman, 9 Pa. Superior Ct. 310.
    February 28, 1908:
    Evidence of good character is positive evidence, and may of itself, by the creation of a reasonable doubt, work an acquittal: Com. v. Sayars, 21 Pa. Superior Ct. 75; Heine v. Com., 91 Pa. 145; Hanney v. Com., 116 Pa. 322.

      William H. Spencer, district attorney, with him John J. Reardon, for appellee,
    cited: Com. v. Gillespie, 7 S. & R. 469; Com. v. Kaufman, 9 Pa. Superior Ct. 310.
   Opinion by

Morrison,

The defendant was indicted under section 113 of the Act of March 31, 1860, P. L. 382 (see page 410): “If any person, being a trustee for the benefit, either wholly or partially, of some other person, or for any public or charitable purpose, shall, with intent to defraud, convert or appropriate the same, or any part thereof, to or for his own use or purpose, or the use or benefit of any other person, or shall, with intent aforesaid, otherwise dispose of or destroy such property, or any part thereof, he shall be guilty of a misdemeanor.”

The defendant qualified as executor of the last will and testament of H. B. Meliclc and gave bond in the sum of $80,000, with the Fidelity and Deposit Company of Maryland as his surety, and proceeded to the execution of his trust. It is alleged that about $82,000 came into his custody as such trustee and that he unlawfully converted and appropriated about $12,000 of this sum to his own use and neglected and refused for several years to pay the same over to the persons lawfully entitled thereto.

The indictment contained five counts. The defendant’s counsel moved to quash the indictment, but the learned court refused the motion, except as to the first count, which was quashed. Each count charges substantially the same crime. It is hard for us to see on what ground the first count was quashed. It is equally difficult to understand why the indictment was drawn with five counts. One well-drawn count, under section 113, would have been sufficient, as well as more concise and satisfactory pleading. However, each count charged the same crime and it cannot be said that the multiplicity of them seriously injured the defendant.

The counsel then moved the court to compel the commonwealth to elect to try the case on one count of the indictment. This motion was refused, but the court did compel the commonwealth and the defendant to go to trial on the fourth and fifth counts. There is no material difference in these two counts, except the fifth alleges a refusal to pay over on demand the property alleged to have been embezzled. But the 113th section does not make that embezzlement. If it did, then the count might be bad as charging separate crimes in one count: Com. v. Mentzer, 162 Pa. 646. But section 65 of the act of March 31, 1860, under which the defendant was indicted in that case, makes failing to pay over on demand, embezzlement. Not so, however, under section 113, where the crime is to convert or appropriate with intent to defraud. It was, therefore, within the discretion of the court below, to compel the defendant to go to trial on the fourth and fifth counts. They practically charged the same offense and the defendant was not harmed by this action of the court. We consider the indictment sufficient.

The averment of refusal to pay on demand in the fifth count may be regarded as surplusage. But the commonwealth might prove demand and refusal to pay over as evidence of .conversion to defendant’s own use with intent to defraud, which is the real crime charged against the defendant: Commonwealth v. Beale, 19 Pa. Superior Ct. 434.

In Hutchison v. Commonwealth, 82 Pa. 472, there was an indictment with five counts. There was a motion to quash which was overruled, and the Supreme Court held that the first, third and fourth counts were bad and ought to have been quashed and that there was no evidence to support the second count. The defendant was convicted of larceny as bailee and the Supreme Court affirmed the judgment because the fifth count was good. That case holds that it is a fraud per se for a bailee to convert to his own use the property committed to his care. If a trustee converts trust property to his own use, it is surely prima facie evidence of intent to defraud, and evidence of demand and refusal to pay over is evidence of fraudulent intent. The first and second assignments raise the questions we have been discussing and they are not sustained.

The third and fourth assignments raise the question of the refusal of the court to permit the defendant to prove that he made a full statement of his financial condition, the property he possessed, the liens thereon, etc., for the purpose of negativing the intent to defraud: also to prove the value of defendant’s real estate with a view to rebutting his intent to defraud by showing that he had some properties and equities in real estate worth considerable money, etc.

The theory of defendant’s counsel seems to be that the defendant could rebut the intent to defraud by showing possession and ownership of property of sufficient value to repay the sum alleged to have been embezzled. We understand the position to be that if a trustee unlawfully converts and appropriates to his own use $10,000 of the trust fund and neglects and refuses to restore the same, for a long time after demand and after it became his duty to pay the same over, he may rebut the evidence of fraudulent intent by proving that during all the time he was worth, say $50,000. We do not believe this is the law in Pennsylvania. We have been referred to no satisfactory authority to that effect, nor do we know of any.

The counsel cites: “Evidence of the pecuniary condition of the defendant charged with embezzlement immediately prior to the time and during the time the offense is alleged to have been committed is competent:” 6 Am. & Eng. Ency. of Law, 503. The above citation is from the case of the United States v. Camp, 10 Pac. Repr. 226. We have already said that we are not prepared to convict the court below of error in excluding such evidence.

United States v. Camp, 10 Pac. Repr. 226, was a case in which the defendant was a trustee of United States money at Boise City, Idaho. He took charge of said office on June 1, 1883, and was last in charge of the same April 14,-1885. On the latter date there should have been a balance of $24,119.78 in his possession of government money which he had received. On the last mentioned date defendant went east and remained absent until about May, 1885. During his absence the office and funds thereof were in charge of R. Heurschkel, assistant assayer under the defendant. When the defendant left for the east and turned the funds over to Heurschkel, neither, counted the money in the presence of the other, but defendant testified that he counted it himself and that there was in the neighborhood of $24,000. Heurschkel testified that he did not count it; supposed it was all right and reported the full amount on hand for sixteen days thereafter and until he received orders from Washington to count the same; that upon the receipt of said order, he counted the money in the presence of witnesses and found the funds short in the amount charged in the indictment, to wit: $12,306.36. Camp was indicted and tried for the embezzlement. The theory of the defendant was that Heurschkel having equal opportunity to embezzle the funds with the defendant, it was impossible to say that the defendant was guilty and he should have been acquitted.

The report of the case shows that at the trial the United States put in evidence certain papers, receipts and documents of defendant’s showing his financial circumstances and his expenditures at the time he assumed such position as assayer and immediately prior to and during the time of his holding said position. The admission of this evidence was assigned for error by the defendant, and the court held that it was competent. It is very apparent that it was offered for the purpose of convincing the jury, that Camp was probably the man who embezzled the money and not Heurschkel. We may add that Camp was convicted and sentenced and the conviction affirmed. Thus it appears that the evidence was admitted for precisely the opposite purpose from that contended for by the defendant in the present case.

We need not commit ourselves to the soundness of the ruling in that case. It is sufficient to say that it does not sustain the contention of the learned counsel for defendant, in the case at bar, in any degree whatever. The argument in favor of the third and fourth assignments loses sight of the fact that the present defendant unlawfully converted the trust funds to his own use and neglected to restore or pay over the funds for years after he ought to have done so. The evidence of the commonwealth clearly established the facts necessary to his conviction, and he could not procure an acquittal by showing that he had made a full statement of his financial condition, and the character and value of his property, long after the offense had been committed. His whole defense amounted to but little more, if any, than an admission of his guilt. If he had pleaded guilty, it would not have condoned his offense nor have rebutted the presumption of fraudulent intent.

In Commonwealth v. Kaufman, 9 Pa. Superior Ct. 310, we held: “Conversion of the trust fund to any other use than that of the cestui que trust is prima facie fraudulent and the trustee’s failure to pay on settlement of his account is evidence of such conversion. In the ■ present case there is no evidence to rebut the presumption of a fraudulent conversion arising from default of payment.” As to the case at bar, We say broadly that the defendant’s offers, which give rise to the third and fourth assignments, were not legally sufficient or competent to rebut the presumption of a fraudulent conversion, arising from the commonwealth’s evidence, and the court rightly rejected the offers. The third and fourth assignments are not sustained.

The fifth, sixth, seventh, eighth, ninth and tenth assignments allege error in excerpts from the charge of the court. A careful reading of the charge as a whole, as well as an examination of the excerpts quoted in said assignments, fails to convince us of serious error in the charge. We consider it adequate and impartial. The said assignments are not sustained.

The eleventh assignment is to the answer of the court to the defendant’s sixth point, to wit: “Evidence of good character is positive evidence, and may of itself by the creation of a reasonable doubt produce an acquittal.” The answer is: “Evidence of previous good character is to be regarded as substantive proof, and, as such, evidence upon which a reasonable doubt of guilt may rest. It should be observed, however, that there comes a time in the life of every criminal when he commits his first offense and when he leaves the high plane upon which walks the upright, law-abiding citizen.” In view of the clear rule established by the Supreme Court and followed by this court for instructing a jury as to the effect of evidence of good character, we feel at liberty to say that the above quoted answer is not above criticism, and it would have been wiser and safer to have followed the rule found in the following and many other cases that might be cited: Com. v. Eckerd, 174 Pa. 137; Com. v. Harmon, 199 Pa. 521; Com. v. Dingman, 26 Pa. Superior Ct. 615.

However, upon careful consideration, we do not think the answer to the sixth point (eleventh assignment) requires us to reverse the judgment. While it may be rather close to the border line, we are not convinced that it misled the jury. Upon the whole record, we find that the defendant had a legal trial and reversible error is not disclosed by any of the assignments and they are all dismissed.

The judgment is affirmed and the record is remitted to the court below with instructions to have the judgment carried into execution.


author: Morrison, J.,

text:
    Brewer v. Lohr, Appellant.

      Gift — Gift of land — Parent and child — Parol gift — Evidence.
    There is no marked distinction between the evidence required to establish a parol sale of land from a parent to a child, and that required to establish a parol gift from a parent to a child.
    As between such persons, the evidence of a gift or sale must be direct, positive, express and unambiguous, and its terms must be clearly defined, and all' the acts necessary to its validity must have special reference to it and nothing else. If the gift is in parol, it must be an unqualified parol gift, and there must be the taking and maintaining of exclusive possession thereunder, and the making of valuable improvements to the real estate.

      Ejectment — Verdict—Informal verdict — Practice, C. P.

    A verdict in ejectment, dated, taken in open court, and “for plaintiff, binding instructions,” although informal, is sufficient to support a judgment.
    Argued Nov. 13, 1907.
    Appeal, No. 40, Oct. T., 1907, by-defendant, from judgment of C. P. Lancaster Co., June T., 1904, No. 19, on verdict for plaintiff in case of W. U. Brewer and Elmer E. Stouffer, Executor of Andrew S. Shank, deceased, v.' Annie Lohr.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Ejectment for land in the borough of Manheim.
    The facts appear by the opinion of the Superior Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff. Defendant appealed.

      Error assigned among others was in giving binding instructions for plaintiff.

      H. Frank Eshleman, with him B. F. Davis, for appellant.—
    This case is governed by the rules relating to parol “gifts,” and not by the rules relating to parol “ sales ” of and “ contracts ” for land: Sower v. Weaver, 84 Pa. 262; Caldwell v. Caldwell, 24 Pa. Superior Ct. 230; Matthews v. Matthews, 11 Pa. Superior Ct. 381; Brown v. Bailey, 159 Pa. 121.
    Aside from the lesser requirements to make out a parol gift than those required to make out a parol sale or contract, we contend that our evidence was sufficient to take the case to the jury even if it were a parol sale: Allison v. Burns, 107 Pa. 50; Harris v. Richey, 56 Pa. 395; Hart v. Carroll, 85 Pa. 508; Hess v. Calender, 120 Pa. 138.
    . As between parent and child the interpretation is to be that which arises out of the family relation; and a different construction prevails than in similar cases between strangers: Poorman v. Kilgore, 26 Pa. 365; Myers v. Leas, 101 Pa. 172; Storey’s App., 83 Pa. 39.
    «7722. Ruthrauff, with him 22. V. Alexander and W. U. Brewer, for appellees,
    cited: Allison v. Burns, 107 Pa. 50; Caldwell v. Caldwell, 24 Pa. Superior Ct. 230; Poorman v. Kilgore, 26 Pa.' 365; Cox v. Cox, 26 Pa. 375; Green v. Schrack, 16 Pa. Superior Ct. 26; Irwin v. Patchen, 164 Pa. 51; Ackerman v. Fisher, 57 Pa. 457.
    February 28, 1908:
   Opinion by

Morrison, J.,

It was conceded at the trial that the legal title to the house and lot described in the writ of ejectment was vested in Andrew Shank, by deed dated April 3, 1884, from Fannie Ruhl; also conceded that the last will of Andrew Shank clothed his executors with authority to maintain this action of ejectment. Also, that defendant, Adam Witmyer, was in possession of the premises as tenant, only, of Annie Lohr. The plaintiffs made a prima facie case and it was rightly conceded that the burden rested on the defendants to show a paramount title or right of possession. This the defendant, Annie Lohr, undertook to do by showing a parol gift of the premises in dispute, to her, by her father, Andrew Shank, and that she went into possession thereof, made valuable improvements thereon and maintained such possession for a term of nearly twenty years, and that she was in possession at the time of the bringing of this suit.

In Syler v. Eckhart, 1 Binney, 378, Tilghman, C. J., said: "We see no material difference between a sale and a gift; because it certainly would be fraudulent conduct in a parent to make a gift which he knew to be void, and thus entice his child into a great expenditure of money and labor, of which he meant to reap the benefit himself.” It is contended by counsel for appellant that there is a marked distinction between the evidence required to establish a parol sale and that required to establish a parol gift. An examination of many authorities since Syler v. Eckhart does not satisfy us that there has been a very marked departure from the doctrine of that case.

In Poorman v. Kilgore, 26 Pa. 365, it is held, as clearly stated in the syllabus, as follows: "In parol sales of land, it is the duty of the courts, in the application of the practice and principles of equity, to reject all the evidence of a verbal contract; if, being taken together, it fails to make out such a case as is entitled to stand as an exception to the statute of frauds and perjuries.

“The use and-possession of the real estate of a father, by a child, is to be interpreted by the law of evidence that arises from the family relation, and as between such persons, are to receive a different construction from similar acts between strangers.

“As between such persons, the evidence of a gift or sale must be direct, positive, express and unambiguous, and its terms must be clearly defined, and all the acts necessary to its validity must have special reference to it and nothing else.”

In Sower’s Admr. v. Weaver, 84 Pa. 262, Mr. Justice Gordon (p. 268) said: “What we have to consider is not whether the defendant has made out such a case as would entitle him to a decree of specific performance, for it seems to be pretty well settled, in this state at least, that equity will not enforce a contract the consideration of which is only natural love and affection, but whether he has shown enough to prevent the disturbance of his possession by Sower’s legal title. As we have seen, for this purpose, a gift, accompanied by possession, is sufficient.” Another portion of the same opinion reads: “As in parol sales where the performance has been carried so far, or is of such a character as to make compensation difficult or impossible, the contract is exempted from the operation of the statute. Such will also be the case with a gift where, in pursuance thereof, possession has been taken and valuable improvements have been made; this a fortiori, where this possession has been undisturbed for a great length of time or where the improvements have added largely to the value of the property.”

It thus clearly appears that there must be an unqualified parol gift, taking and maintaining exclusive possession thereunder and the making of valuable improvements to the real estate.

In Caldwell v. Caldwell, 24 Pa. Superior Ct. 230, we followed the doctrine of the above cases. In that case we also held that such gifts must be established by such proof as is credible, and of such weight and directness as to make out the facts alleged beyond doubt, and, in the case of a gift from a parent to a child, the parties must be brought face to face at the making or rehearsal of the gift, citing: Hart v. Carroll, 85 Pa. 508. We also held: “The rule as to the character of evidence necessary to sustain a parol sale of land controls as far as applicable in the case of a parol gift.” See also Hess v. Calender, 120 Pa. 138; Sample v. Horlacher, 177 Pa. 247.

Tested by the doctrine of the above cases and half a score or more of others, cited by the learned court below in his opinion refusing a new trial and vindicating his judgment in directing a verdict in favor of the plaintiffs, we think the defendant entirely failed to make out a parol gift, taking possession thereunder and making valuable improvements such as would vest title in her or prevent her from being ousted by those claiming under the legal title of her father.

In our opinion it will be unprofitable to attempt to add to or strengthen the clear and convincing opinion of the learned court below already referred to. However, we will refer to the complaint that there was no legal writ issued in the case. There is no merit in this assignment. There was a summons in ejectment describing the property, service accepted and plea entered and trial upon the merits. Neither do we think there is any merit as to the form of the verdict. It was dated and taken in open court, and was “for plaintiff, binding instructions.” It is true it is informal, but it can have but one meaning, after judgment entered thereon, that is, it was in favor of the plaintiff for the land described in the writ. There is no merit in the complaint that the court erred in refusing to hear evidence as to the real estate owned by Andrew Shank at the time of his death. The purpose of this offer was to lay ground for arguing to the jury that Andrew Shank discriminated against the defendant in his last will because he had given her the real estate in question. The will throws no light on this subject. The testator had a clear legal right to will his property as he pleased. Moreover, he gave $300 to the defendant, and if she occupied the house and lot in question for about twenty years, as tenant at $75.00 per year, and did not pay the rent, as the evidence tends to show, this would furnish a reason, if one were needed, why the testator only gave the defendant $300.

The leading witness relied on by the defendant, Annie Lohr, is Jacob Hossler. He is the only witness who brought the parties face to 'face as to any discussion or facts tending to show a parol gift. ■ His testimony, ■ taken as a whole, is not precise and convincing and it is very unsatisfactory. He does not testify, as defendant’s counsel assert, that Andrew Shank delivered to Annie Lohr his deed for the premises. He says he delivered her a paper and said, in substance, that he gave her the property. He did not pretend to say it was a deed for the property. If Annie Lohr, under a parol gift, accompanied by a delivery of her father’s deed for the property, entered into and retained possession thereof, she surely would have produced this deed at the trial or .have tried to show why it was not in her possession. But the evidence shows that Andrew Shank kept the deed locked up in his. iron safe until the time of his death. The evidence that Andrew Shank told Annie to get a deed for the property does not necessarily mean that she was to get a deed from Fannie Ruhl. Shank might have meant to have a deed prepared for him to execute to Annie. If this is so, it would be very strong evidence that he had not given the property to Annie, but had in mind to do so. This would not be sufficient basis for a title to her. In addition to this, the deed from Fannie Ruhl procured on November 19, 1903, by Annie, cuts no figure in this case. Annie knew that her father held the deed from Fannie Ruhl for the same property, dated April 3, 1884, and, therefore, the second deed from Fannie to Annie was no better than so much blank paper.

We may add that in view of the occupancy of the premises for about twenty years by Annie Lohr, the improvements made by her are trifling. It is amazing that a family could live in a house for that length of time and expend so little on improvements. The learned counsel seems to include in the value of the improvements, money paid for taxes. It is a novel proposition that paying taxes improves real estate. If Annie Lohr occupied the premises about twenty years as a tenant, and did not pay her rent, in support of which there is evidence, it is not strange that her father allowed her and her .husband to pay the taxes. The evidence tends to show that Annie held possession as a tenant of her father. This destroys the clear, precise and convincing evidence of a gift.

Moreover, it is a conceded fact that at the date of the alleged gift, as testified to by Jacob Hossler, Annie Lohr was in possession of the premises in question as a tenant of her father. At that time no change in the possession took place at all and there is no clear, precise and convincing evidence from which a chancellor could find, beyond doubt, that Annie Lohr ever took possession of the said premises as an owner, with the consent of her father.

The whole evidence fails to show the making of such valuable improvements as could not be compensated for in damages. As to this essential element to sustain a parol sale or gift of land, the evidence is very weak.

It is manifest to us that on a careful reading of all the testimony, no competent, careful chancellor could have reached a conclusion that the defendant had such a title, by gift or otherwise, as would prevail against the legal title of Andrew Shank.

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


author: Head, J., Head, J.,

text:
    Gross to use v. Adams Express Company, Appellant.

      Carriers — Common carriers — Negligence—Presumption—Special com tract.

    Where glass is carefully packed by a competent person, and delivered in good order for shipment to an express company, but is found to be broken when it reaches its destination, a jury may draw an inference of fact that the injury sustained was caused by the negligence of the carrier; and this is the ease, although the glass was shipped under a special contract by which the express company was to be liable only for its own acts of negligence.
    The injury in such a case, is evidence of negligence, but it is only evidence and the inferences are to be drawn by the jury. The plaintiff proves the facts from which the inferences are to be drawn, and thus meets the burden which is, in the first instance, upon him to establish the negligence of the defendant.

      Practice, C. P. — Commission to take testimony — Improper appearance, of counsel — Waiver of defect — Rules of court.

    Where the return of a commission to take testimony shows on its face that counsel for plaintiff appeared at the hearing while there was no appearance for defendant, the depositions taken under the commission will not be rejected at the trial, if it appears that no exception to the irregularity was filed by the defendant, under a rule of court, which required that specification of objections to the execution of a commission must be filed within ten days after notice of the return of the commission. The application of the rule of court in such a case is within the sound discretion of the court below, and will not be reviewed by the appellate court.
    Argued Nov. 15, 1907.
    Appeal, No. 196, Oct. T., 1907, by defendant, from judgment of C. P. Berks Co., Dec. T., 1906, No. 44, on verdict for plaintiff in case of George J. Gross for the use of 'Sidney T. Repplier v. Adams Express Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a package of stained glass. Before Endlich, J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $195. Defendant appealed.

      Errors assigned amongst others were (2) in admitting depositions taken under commission, referred to in the opinion of the Superior Court, and (5) in refusing binding instructions for defendant.

      Cyrus G. Derr, with him Edward S. Kremp, for appellant.—
    There was no evidence of negligence. The presence of the appellee’s attorney vitiated the depositions, that is, made them void, and there was nothing upon which to base a notice of filing: Hollister v. Hollister, 6 Pa. 449.

      February 28, 1908:

      Charles H. Tyson, with him George J. Gross, for appellee.—
    The case was for the jury: Phoenix Pot Works v. R..R. Co., 139 Pa. 284; Menner v. Canal Co., 7 Pa. Superior Ct. 135; Delahunt v. United Telephone, etc., Co., 215 Pa. 241; Oil Co. v. Penna. Torpedo Co., 190 Pa. 350; Rhymer v. R. R-. Co., 27 Pa. Superior Ct. 345.
   Opinion by

Head, J.,

The plaintiff in this action seeks to recover damages for injuries to his property received, as he alleges, in the course of transportation by the defendant company from Jersey City to Reading, Pa. At the trial evidence was introduced from which the jury could find that the stained glass, the property mentioned, was carefully packed at New York by a competent person and delivered in good order for shipment to the defendant company. When the package reached its destination at Reading, the glass was found to be broken, and to recover its value this suit was brought.

The defendant is a common carrier. The property of the plaintiff having been, as the jury found upon evidence, delivered to the carrier in good condition, the duty of the latter to transport it safely arose. It was, as above stated, found upon its arrival at destination broken. In such cases, the law reasonably and necessarily raises the presumption that the injuries sustained by the property were caused by the negligence of the carrier. This presumption may, it is true, be overcome, if the carrier can furnish satisfactory evidence that the injury resulted from some other cause than its own negligence, but in the absence of such explanation by the carrier, the legal presumption of negligence furnishes a sufficient foundation for a verdict against the carrier: Rhymer v. D., L. & W. Railroad Co., 27 Pa. Superior Ct. 345; Schæffer v. Phila. & Reading Railroad Co., 168 Pa. 209. In the first case cited it was said, “When an injury to property is of the character complained of in this case, if no explanation whatever is given as to how the injury occurred, a presumption of negligence arises which is sufficient to justify a recovery in cases where there is no other proof than of the delivery of the goods to the carrier in good condition, and their arrival at the point of destination in a damaged condition.” Many cases are there cited in support of this well-recognized principle.

In the present case, the defendant offered no evidence whatever from which the jury could have found that the presumption of negligence raised by the law had been overcome, and that the injury to the plaintiff’s property had resulted from any cause other than the negligence of the defendant.

The only other question raised by this appeal was the correctness of the ruling of the learned trial court admitting in evidence the depositions of witnesses taken in the state of New York under a commission for that purpose, which issued out of the court of common pleas of Berks county. When that commission issued, notice of that fact was served upon the defendant, and that notice contained the information that a commission had issued to one John C. Rowe,' having his office at No. 44 Broad street, New York city, and that said commission would be executed and the testimony taken by the said commissioner, at his office, on Saturday, April 6,1907, between 10 a. m. and 3 p. m. Upon the return of the commission after execution, notice was again served upon the defendant “that "the depositions taken by virtue of a commission in the above-entitled cause have been filed in the office of the prothonotary.” When these depositions were offered in evidence at the trial, objection was made to their admission in evidence because it appeared from the certificate of the commissioner that one Wallace Stevens, an attorney at law, appeared in behalf of the plaintiff, and that there was no appearance in behalf of the defendant.

It is hrue that in Hollister v. Hollister, 6 Pa. 449, it was held that a deposition taken under a commission, executed outside of the state, should be rejected, if it appeared that the party who procured it, or'his solicitor, was present with the commissioner when the testimony was taken. The reason for the rule which followed the practice of the court of chancery in England is thus stated by Coulter, J.: “ When depositions are taken within the state, the time and place are fixed, of which the opposite party has due notice, and has the opportunity of being present if lie thinks proper. • But in relation to depositions taken on a commission without the state, the time and place are not fixed, and depend upon the option of the party procuring it, who selects his own time. It is, therefore, unreasonable to allow his presence, or that of his agent, when the opposite party has no notice, and no opportunity of being present by himself or his agent.” Whether under the particularity of the notice given in the present case, to which we have adverted, the reasoning of this rule, and hence the rule itself, would apply, might be questioned. But it is not necessary to consider that because the court below, conceding the existence of the rule and its applicability to this case, determined that the defendant had waived any right to urge an objection founded thereon.

By rule 23 of the rules of court of Berks county, it is provided that upon the return of any commission, “either party may give notice thereof to the opposite party who shall, within ten days after service of such notice, file a specification of his objections, if he have any, to the notice, service, form, or execution of the commission, or the talcing of the deposition, or the mode of swearing the witnesses, or to any of the acts or omissions of the commissioners or magistrates, or of any other person or persons in or to the same. No exception to the admissibility of the evidence so returned or filed, not included in such specification, shall be taken on the trial unless it be an exception that might be taken to the evidence if the witness were offered for examination orally in court.” The helpfulness of such a rule in the trial of causes is so apparent that it has found expression in the rules of almost every court within the commonwealth. If in the execution of a commission some mistake, irregularity or impropriety on the part of the litigant desiring to use testimony thus taken has been allowed to creep in, the earliest possible notice of such defect ought to be given so that it could be remedied by the issue of another commission. To allow the opposite party to sit quietly by after notice of the execution of such commission, and then at the trial take advantage of such a technical defect, and thus deprive the party of the benefit of the testimony, would not be in accord with that spirit of fairness which ought to characterize a judicial proceeding.

As already stated, upon the return of the commission in the present case, notice was given under the rule of court to the defendant’s counsel “that depositions taken by virtue of a commission in the above entitled case” had been filed. It thereupon became the duty of the defendant to examine the record and see if it exhibited any such defects in the execution of the commission as might defeat the object intended to be secured when it issued. If there were such defects, any exceptions thereto should have been specified and filed as the rule of court required. No such exceptions were filed. The learned court below construing its own rule, held that the objection made at the trial to the admission of the deposition 'came too late. In this we can find no error. Even in doubtful cases a wide discretion is vested in every court in the construction of its own rules, and it is only where there has been a palpable abuse of such discretion that an appellate court will interfere. We are unable in the present case to discover any such abuse of discretion, and we therefore but follow a long line of precedents in accepting that construction of the rule adopted by the court that made it.

The assignments of error are therefore overruled and judgment affirmed.

Opinion by

Head, J.,

on motion for reargument:

It is certainly true, under the special contract entered into between the parties, that the defendant would be liable only for its own acts of negligence, and that a jury could properly base a finding of such negligence only on testimony, produced at the trial, and deemed by the law sufficient to support such a finding. The learn'ed trial court carefully so instructed the jury. “ The jury will have to inquire — and that is the important point — whether the defendant company received this package in good condition, its contents unbroken, and so packed as to be safely handled with adequate care according to its visible requirements. Where the thing is shown to be under the management of the defendant or its servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.”

In his opinion entering judgment on the verdict the learned court below fully demonstrated the soundness of the position taken at the trial, citing a number of authorities, among them: Rhymer v. R. R. Co., 27 Pa. Superior Ct. 345. In that case, as in this, there was a special contract under which the defendant would be liable only for its own acts of negligence.

Defining the measure of proof necessary to establish negligence in such cases, this court said: “When inanimate property, of a character which is not by natural laws marked for early decay, is properly prepared for shipment when delivered to the carrier, and, upon reaching its destination is found to be badly damaged, a reasonable inference arises that it was not transported with ordinary care. The injury, in such a case, is evidence of negligence, but it is only evidence and the inferences are to be drawn by the jury. The plaintiff proves the facts from which the inferences are to be drawn, and thus meets the burden which is, in the first instance, upon him to establish the negligence of the defendant.”

We have carefully re-examined the printed brief of argument submitted by the learned counsel for the appellant. We find in it no attempt to controvert the correctness of the legal position taken by the learned trial court; no mention of the several cases relied on or any argument to prove them inapplicable to or distinguishable from the case before us. The effort seemed to be to show that, under the evidence, the injury might have occurred from some one of several causes other than the negligent act of the defendant, and hence the conclusion reached in the verdict was but an unwarranted guess. .

Unable to follow the argument to the conclusion desired by the learned counsel we said, in the brief opinion on this branch of the case: “At the trial evidence was introduced from which the jury could find that the stained glass was carefully packed at New York by a competent person and delivered in 'good order for shipment to the defendant company. When' the package reached its destination at Reading, the glass was found to be broken. ... In such cases the law reasonably and necessarily raises the presumption that the injuries sustained by the property were caused by the negligence of the carrier.” The presumption referred to was intended to be understood as one of fact, not of law. It would have been more strictly accurate to have said that in such cases the law reasonably and necessarily recognizes the right of the jury to draw the inference of fact that the injury sustained was caused by the negligence of- the carrier. Resting our judgment, as we expressly did, on the authority of Rhymer v. R. R. Co., 27 Pa. Superior Ct. 345, and kindred cases, we did not intend to deny to the defendant any protection afforded by its special contract, or to consider its liability as if no such contract existed. But that contract could not protect it against the consequences of its own negligence. ' There was evidence legally sufficient to warrant an inferencé by the jury that such negligence caused the injury. The evidence was submitted with instructions that were free from any error.. A judgment on the verdict so rendered properly followed. The motion for a, reargument is denied.


author: Head, J.,

text:
    Commonwealth v. The Baltimore & Ohio Railroad Company, Appellant.

      Railroads — Obstructing public highway — Nuisance—Common-law offense — Indictment.
    A railroad company which operates its cars and trains in such an arbitrary and unreasonable manner across a public highway as to create a public nuisance, may be indicted for and convicted of the common-law offense of unlawfully obstructing a public highway.
    In such a ease an indictment is sufficient which charges that the defendant “in and across the public highway , . . . unlawfully did keep and maintain a railroad track and way and did use the said track and way for the frequent and rapid passing and repassing of trains, whereby the use of the said road was and continues to be dangerous, obstructed and straitened so that the good citizens could not and have not been able since to pass and repass as they ought and of right should and were wont to do.”
    Argued Oct. 28, 1907.
    Appeal, No. 108, April T., 1908, by defendant, from judgment of Q. S. Washington Co., August T., 1907, No. 231, on verdict of guilty in case of Commonwealth v. Baltimore and Ohio R. R. Co.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for obstructing a highway. Before Taylor, J.
    'The facts are stated in the opinion of the Superior Court.
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were (1) in refusing to quash the indictment; (2) in refusing to arrest the judgment; and (3) in passing judgment of sentence upon the verdict.

      Norman E. Clark, with him Winfield Mcllvaine, for appellant.
    —The indictment did not charge a crime under the law: Penna. R. R. Co.’s Case, 213 Pa. 373.
    The construction and maintenance of the railroad tracks' across the public highway and the running of the trains thereon, under the power conferred in the acts of assembly, is not a nuisance: Danville, etc., R. R. Co. v. Com., 73 Pa. 29; Mercer v. R. R. Co., 36 Pa. 99; Struthers v. Ry. Co., 87 Pa. 282; Joyce on Nuisances, 425.
    It is not sufficient to charge generally that defendant committed a certain offense, nor will the use of the word “unlawfully” supply the omission of material matter in the description of the offense: 22 Cyc. p. 326; Clark’s Criminal Procedure, 156; Lamberton v. State, 11 Ohio, 282; United States v. Cruikshank, 92U.S.542.
    Our position is that this indictment is so general in its terms that it does not state any offense which will enable the court to pronounce a sentence on the verdict: Seifried v. Com., 101 Pa. 200; Sherban v. Com., 8 Watts, 212; Com. v. Moore, 99 Pa. 570; Com. v. Gallagher, 9 Pa. Superior Ct. 100.

      February 28, 1908:

      Owen C. Underwood, district attorney, with him G. L. V. Acheson, assistant district attorney, for appellee.
    — While it is true that the defendant company is authorized to construct and maintain its road over and across pub.'ic highways and to pass its trains over the same, it is equally true that it cannot do so to the nuisance of the public: Penna. R. R. Co.’s Case, 213 Pa. 373.
    Obstructing a public highway so as to incommode public travel is an indictable offense at common law: State v. Yarrell, 12 Ired. 130; State v. Morris and Essex R. R. Co., 3 Zab. 360; Rex v. Russell, 6 East, 427; People v. Cunningham, 1 Denio, 524; Rex v. Jones, 3 Camp. 230; Bush v. Steinman, 1 Bos. & Pul. 404; Com. v. Milliman, 13 S. & R. 403.
    It is not necessary that the acts constituting the offense ' be particularly described with all their circumstances, if it can be distinctly defined without this, and much of the particularity of pleadings comes from an abundant caution rather than from the requirements of the law: Sherban v. Commonwealth, 8 Watts, 212; Com. v. The Commercial Bank, 28 Pa. 391; Election Cases, 65 Pa. 20; Com. v. Keenan, 67 Pa. 203; Com. v. Johnston, 19 Pa. Superior Ct. 241; Com. v. White, 24 Pa. Superior Ct. 178; Brown v. Com., 78 Pa. 122.
   Opinion by

Head, J.,

The defendant was tried and convicted in the court below upon a bill of indictment charging, as is alleged, the common-law offense of unlawfully obstructing a public highway. The assignments of error raise no question of the correctness of any ruling admitting or rejecting evidence during the trial; of the sufficiency of the evidence, regarded in its entirety, to establish that offense; nor of the manner in which the learned trial court, in the charge, submitted to the jury the issues of fact raised by the pleadings and evidence.

They do, however, raise the broad question that the bill charges no offense indictable at common law. In the development of the supporting argument, the learned counsel for the appellant contend, first, that the bill itself discloses that the alleged obstruction or nuisance consists solely in the facts that the railroad company has crossed, with its tracks, at grade, a public highway and is operating its cars over such tracks— both of which acts it is expressly authorized by law to do. Second, that the rights and duties of a railroad company, whose tracks cross a public road, are defined by statute, and hence, for any abuse of those rights or breach of those duties, no matter how the public using the highway may be affected, the remedy to check the abuse or punish the breach, must be founded on the statute.

The reasons why, in ancient times, great precision and nicety were required in the work of the criminal pleader, and, conversely, the reasons why, in modern times, the rules once prevailing have been abrogated, are stated, with great clearness, in the opening sentences of the opinion of Mr. Justice Agnew, in Com. v. Keenan, 67 Pa. 203. They have become familiar to every practitioner and have resulted in the provision, in our criminal procedure act, “ that every indictment shall be deemed and adjudged sufficient and good in law which charges the crime substantially in the language of the Act of Assembly prohibiting the crime, or, if at common law, so plainly that the nature of the offense charged may be easily understood by the jury.”

If, therefore, an act, which from time immemorial, has been recognized by the common law and known and understood by the people, as a criminal act, for example, the obstruction of a public highway, be made the subject of indictment, there can be but little difficulty in so setting forth its substance “ that the nature of the offense charged may be easily understood by the jury.” In such a case, if in any, it ought to. be true that “an indictment is now little more than a simple statement of the offense, such as good sense and regard for the accused alone would suggest:” Com. v. Frey, 50 Pa. 245. “Whether the indictment .... might not have been framed with greater precision and certainty, .... need not be considered; we have only to determine whether it sets forth, with the requisite certainty, the essentials of the offense which it is designed to charge: ” Com. v. White, 24 Pa. Superior Ct. 178.

Neither the common law, our legislature nor our Supreme Court has undertaken to specifically define the acts constituting the offense of obstructing a highway; but it has ever been held that any wrongful or unauthorized act by one in or upon the highway, by which the common right of the citizen to safely and freely use it, would be imperilled or seriously interfered with or obstructed, would exhibit the necessary ingredients of the offense. Manifestly, therefore, the offense may be committed not only by the unauthorized erection, on a public road, of a physical structure impeding public travel, but also by one who has the lawful right to use the highway, sub modo, but who undertakes to exercise that right in an unlawful way without regard to the equal rights of the public in their use of it. It is towards such an alleged unlawful abuse, by the defendant, of its right on the public road that the indictment, in our opinion, was aimed.

After averring the existence of the defendant corporation, under the laws of the state, and of the highway alleged to have been obstructed, the indictment charges that the defendant, in and across the public highway .... unlawfully did keep and maintain a railroad track and way and did use the said track and way for the frequent and rapid passing and repassing of- trains, whereby the use of the said road was and continues to be dangerous, obstructed and straitened so that the good citizens could not and have not been able since to pass and re-pass as they ought and of right should and were wont to do,” etc. The absence of any language descriptive of the physical structure erected by the defendant is significant and indicates that it is not the existence of that structure on the highway that is complained of. It is the alleged unlawful use of that structure that is charged, and such use is said to be not merely the passing of trains over the tracks without more, but a passage of them, whereby the use of said road was and continues to be obstructed,” etc; i. e., such a use of the track in passing trains over it that thereby the ordinary, lawful use of the road was obstructed, etc. If this be the fair construction of the language used, giving to the words their ordinary meaning and requiring certainty only to a common intent, the indictment cannot be justly criticised on the ground that it fails to disclose the essentials of the common-law offense of obstructing a highway. It may be conceded the pleader might well have been a little more explicit as to the manner and character of the use intended to be charged -as unlawful. But the remedy for any lack of detail in the bill was not a motion to quash in limine, and in arrest of judgment after an adverse verdict, but was an application for a bill of particulars: Williams v. Com., 91 Pa. 493; Com. v. New Bethlehem Borough, 15 Pa. Superior Ct. 158.

If, then, the indictment fairly charges an offense at common law, is it an offense of which a railroad corporation, duly created and existing under the laws of Pennsylvania, may now be convicted? The common law, where not superseded or abrogated by statute, is still a part of the law of the land and is binding not only on natural persons but as well upon these artificial persons whose very existence is derived from the creative energy of the law itself. It is well recognized law, that an indictment will lie against a corporation, not municipal, for the creation and maintenance of a public nuisance:” Northern Central Ry. Co. v. Com., 90 Pa. 300. The indictment in the present case would therefore lie against the defendant corporation as well as against a natural person, unless the act of 1849, under which the defendant was incorporated and acquired its franchise, has undertaken to prohibit and punish the offense therein charged, in which event, we may agree, the indictment should be under the statute and not at common law.

By virtue of that act the defendant acquired the right of legal existence and the right to the use, sub modo, of the highways of the commonwealth. That the latter right was intended to be restricted, and not subversive of the general right of the community to the use of the highways, is shown by the language of the twelfth section of the act, wherein the necessary construction of a railroad track across a road or way is legalized, provided the company shall so construct the said road across such established road or way, as not to impede the passage or transportation of persons or property along the same.”

The statute has thus undertaken to define the nature and extent of the physical structure which a railroad company may lawfully build across a public way; and therefore where it appears, that an alleged invasion of the public right consists in the fact, that the structure of the railroad has exceeded the statutory license, it may well be held that an indictment therefor should be for a violation of the statute rather than of the common law. But the statute has not undertaken to define or prescribe what shall constitute a lawful and proper use of the structure after it has been lawfully erected. That a railroad company may successfully plead its legislative license in answer to a charge that its roadbed, constructed as the statute ordains, or that such operation of its cars and trains over that roadbed as is necessarily or reasonably incident to the performance of its corporate functions, constitutes a public nuisance, is, we think, unquestioned. But that such a corporation may so arbitrarily and unreasonably exercise its right to operate cars and trains as to create a public nuisance, of a character both annoying and dangerous, we see no reason to doubt. “ A railroad company is liable for a nuisance where the running of its trains' on the Sabbath is accompanied with such ringing of bells, blowing off of steam and other noises in the neighborhood, of a church during public worship as to annoy and molest the congregation:” Church v. R. R. Co., 5 Barb. (N. Y.) 79. “ Where the legislature authorizes an act which does not necessarily result in a nuisance but such a result flows from the manner in which the act is done, the legislative license is no defense:” Joyce on Nuisances, sec. 73. “Where a railroad intersects a street, if cars are allowed to remain standing upon the crossing for any unreasonable period, so as to be an obstruction to travel, a public nuisance will be thereby created:” Cincinnati R. R. Co. v. Com., 80 Ky. 137.

Many similar cases from many different states could be cited to show a wide recognition of the principle that the lawful right to operate trains and cars, in a reasonable way upon or across a public street or road, may be converted into an abuse which is an invasion of the public right and exhibits every quality of a public nuisance. Inasmuch as the statute of 1849 has not undertaken to define and prescribe the punishment for such a mischief, we see no reason why the present indictment should have been founded on that act.

For the reasons here indicated as well as those so forcibly stated by the learned trial court we think the indictment was sufficient to support the conviction and sentence.

The appeal is dismissed at the costs of appellant and the record remitted to the end that the sentence imposed by the court of quarter sessions be carried into effect.


text:
    Whiteside, Appellant, v. Whiteside.

      Auditor — Findings of facts — Review.
    Where facts have been found by an auditor or master, and his report has been confirmed by the court bélow, the appellate court will not interfere except to correct cases of clear mistake or palpable error.

      Trusts and trustees — Counsel fees — Compensation.
    When reputable counsel insert in a trustee’s account a credit claimed by him against the trust estate, the presumption arises that the compensation thus claimed as counsel fee was for services rendered in aid of the trust, and not in an effort to destroy it.
    Where a trustee denies the trust and the cestuis que trust are compelled to resort to litigation to establish their rights, the trustee will be allowed no compensation. [
    Argued Nov. 14, 1907.
    Appeal, No. 97, Oct. T., 1907, by plaintiff, from decree of C. P. Lancaster Co., Equity Docket No. 4, page 159, dismissing exceptions to auditor’s report in case of Carrie D. Whiteside and Abbie E. Reynolds >v. William C. Whiteside.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Decree modified. ■
    Exceptions to report of M. G. Schaeffer, Esq., auditor.
    The opinion of the Superior Court states the case.

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

      Jno. A. Coyle and W. H. Keller, with them'PF. F. Beyer, for appellants.
    — A trustee who acts in bad faith, who denies the trust and claims the trust estate as his own, forfeits all compensation as trustee: Hanna v. Clark, 204 Pa. 145; Fellows v. Loomis, 204 Pa. 227; Swartswalter’s Account, 4 Watts, 77; Berryhill’s Appeal, 35 Pa. 245; Stehman’s Appeal, 5 Pa. 413; Robinett’s Appeal, 36 Pa. 174; Norris’s Appeal, 71 Pa. 106; Clauser’s Estate, 84 Pa. 51; Hart’s Estate, 203 Pa. 496.
    March 28, 1908:

      W. U. Hensel, with him B. F. Davis, for appellee.
   Opinion by

Head, J.,

Where facts have been found by an auditor or master and his report has been confirmed by the court below, the rule is well established that an appellate court will not interfere except to correct cases of clear mistake or palpable error.

In the steady enforcement of this rule, it may sometimes happen that the conclusions of fact, which, under its operation, the appellate court accepts as final, are not those which might have been reached by that court, were it to hear the witnesses, weigh the evidence and determine the facts for itself in the first instance. But this has not been regarded as a sufficient reason for discarding the rule. The ascertainment of the truth, where matters of fact are in dispute between litigants, is one of the problems perplexing to every tribunal administering the law. But final conclusions upon such matters must be reached somewhere and, as it is manifestly for the'common good that they be reached as early as possible, it .has been the policy of our law to repose that power in the tribunals — the jury, the auditor or master and court below — that see and hear the witnesses and are most nearly in touch with local coloring and conditions. Hence the rule.

Its application to the case before us, compels us to dismiss most of the assignments of error without further comment, because the findings of fact reached by the auditor, whose report was confirmed by the court below, leave no foundation upon which the assignments can rest. The most seriously pressed of the assignments, in that category, is the one which attacks the credit taken by the accountant for counsel fees in the sum of $200. It is true, as the record shows, that as to the present appellants, the defendant was a trustee who undertook to deny and repudiate Ms trust and to appropriate to Ms own use the entire trust property. His conduct subjected them to the annoyance, anxiety and expense of a suit in equity, in order to reclaim the trust property, their right to which should never have been questioned by him. If it appeared as a fact that the counsel fees, for which he took credit in his account, were compensation for professional services rendered to Mm in his futile and wrongful attempt to appropriate to Mmself the property of his cestuis que trustent, we would not hesitate to strike down the credit and surcharge Mm with such sum. But it is to be borne in mind,, that in the execution of his trust, he was entitled to the aid of competent counsel. When reputable counsel insert in a trustee’s account a credit claimed by him against the trust estate, the presumption would fairly arise that the compensation thus claimed was for services rendered in aid of the trust and not in an effort to destroy it. We have read with care the scant testimony contained in the record on tMs item, and we are unable to see that the learned court below, in confirming the report of the auditor allowing that credit, abused his discretionary power or fell into clear and palpable error.

But as to the seventh assignment, we reach a different conclusion. This assignment complains of the allowance by the auditor and the court below, of the sum of $250 to the accountant as compensation for his services.' Such compensation is freely allowed, where the trustee has been loyal to his trust and reasonably vigilant in the performance of the duties imposed by it upon Mm; but we find no warrant in the law, or in sound reason, for rewarding with the badge of honorable service the steward who has betrayed his trust. As was said in Fellows v. Loomis, 204 Pa. 227, “If the rule were otherwise, the law’s premium would be upon faitMessness and bad faith.” Hence in a long line of cases, many of which are cited in the opinion just referred to, it has been held, that the price of disloyalty to a trust is the loss at least of any compensation by those who "are to be regarded as faithless trustees, or as trustees ex maleficio.” We therefore sustain this assignment and direct that the. decree of distribution be modified accordingly.

Whilst also we have accepted, for the reasons indicated, the findings of fact of the auditor adverse to the exceptions filed by the appellants before him, an examination of the whole record convinces us that the filing of the exceptions and the investigation of the trustee’s account, made necessary thereby, were justly attributable to the wavering testimony and suspicious conduct of the trustee himself. We are not satisfied, therefore, that the trust estate, which now practically belongs entirely to the appellants, should be saddled with all of the costs of that investigation, and in this respect, too, we will direct some modification of the decree. In other respects it is affirmed.

It is therefore ordered and decreed that the distribution, made by the auditor and confirmed by the learned court below, be so modified that the credit claimed by the accountant of $250 for compensation, be stricken out, and that he be surcharged with that sum; and further that the costs of audit be equally divided between the trust fund and the accountant, and the record is remitted to the court below, with the direction to make distribution accordingly. The costs of this appeal to be paid by the appellee.


author: Porter, J.,

text:
    Seventh Street Sewer.

      Sewers — Report of viewers — Assessments for cost of sewer — Appeals— Act of May 16,1891, P. L. 75 — Practice, C. P.

    Where a jury of view -assess benefits exclusively to pay the costs and expenses of a sewer, but award no damages for property taken or injured, and make no assessment of benefits to pay damages for property taken and injured and there is nothing on the record to show that any property was injured, a property owner against whose property an assessment was made, cannot maintain an appeal in the court ctf common pleas and demand a jury trial on a statement which merely asserts that the viewers had made an excessive assessment for benefits and that the assessment against the city ought to have been larger.
    Argued Nov. 19, 1907.
    Appeal, No. 36, Oct. T., 1907, by the Chester Steel Casting Co., from order of C. P. Delaware Co., striking off appeal of Chester Steel Casting Company, in the matter of a Sewer on Seventh Street from Tillman Street to Lloyd Street in the City of Chester.
    February 28, 1908:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from report of jury of view.
    The opinion of the Superior Court states the case.

      Error assigned was order striking off appeal.

      Kingsley Montgomery, for appellant.

      A. A. Cochran, for appellee.
   Opinion by

Porter, J.,

The sewer in question was constructed under the authority of the city, duly exercised and entirely within the lines of a public highway. The proceedings ■ before the viewers appointed by the court below, under the provisions of the Act of May 16, 1891, P. L. 75, and the supplements thereto, were in all respects regular. The viewers filed a report finding the cost and expenses of the construction of the sewer to be $10,379.35, of which amount there was assessed against the city of Chester $6,195.45, and the balance was assessed against abutting properties peculiarly benefited, including an assessment of $1,500 against the property of this appellant. The report of the viewers shows that the Chester Steel Castings Company was represented before the viewers and that neither it nor any other party made any claim for damages to property resulting from the improvement, that no damages were awarded by the viewers for property taken, injured or destroyed by the improvement, and that there was no assessment of benefits Upon any property to pay damages for property so taken, injured or destroyed. The assessments were exclusively to pay the costs and expenses of the sewer. The appellant filed no exceptions to the report of viewers, but appealed to the'court of common pleas and demanded a jury trial. The court below, on motion of the city, struck off the appeal of the Chester Steel Castings Company, which action is now assigned for error.

The Act of April 2, 1903, P. L. .124, amending the second and sixth sections of the Act of May 16, 1891, P. L. 75, contains the following provisions which are material in determining the sufficiency of the ground upon which the appellant asserted its right to an appeal and a jury trial in the court below: “Within thirty days after the confirmation, modification, changing or correcting of any report, any interested party may appeal from said decree to the Superior Court or to the Supreme Court, as the case may be. The said report, when and as finally confirmed shall be conclusive as to any assessment made therein to pay the costs and expenses of any sewer, street or other improvement. And within thirty days after said report is filed in court, as aforestated, any party whose property is taken, injured or destroyed, or who is assessed benefits to pay damages for property taken, injured or destroyed, -may appeal to the court of common pleas, and demand a trial by jury, according to the course of the common law. Every appellant shall state in the appeal the grounds upon which or for which the appeal is taken, and the same shall be signed by the party or parties taking the appeal, or by his or their agent or attorney.” Under these provisions of the statute the owner of property which is assessed only to pay the cost of the construction of a sewer does not have the right to appeal from the assessment and demand a jury trial; it is only the party whose property is taken, injured or destroyed, or who is assessed benefits to pay damages for property taken, injured or destroyed, who is possessed of such right. The only remedy of an owner who is assessed for benefits to pay the cost of the construction of a sewer, exclusively, is to file exceptions to the report of viewers and thus secure a modification of the assessment, in the manner provided by the statute: Brackney v. Crafton Borough, 31 Pa. Superior Ct. 413. The report of viewers awarded no damages for property taken, injured or destroyed, and neither this appellant nor any other owner was assessed benefits to pay damages for any property so injured; if, therefore, the steel company was within the class of owners who under the statute had the right to a jury trial it must have been because^ its own property was taken, injured or destroyed. The property of the appellant was not taken, for the sewer was wholly within the line of the public highway. The appellant made no claim for damages, because of injury to its property resulting from the construction of the sewer, before the viewers, but permitted the report to be filed and then failed to call the attention of the court below to any supposed mistake of the viewers, by filing an exception suggesting that its property had been injured. There had been no suggestion during the entire proceeding in the court below that the officers of the steel company imagined that their property had been injured until they filed their appeal and demanded a jury trial. There is nothing in the record which would warrant us in holding that this appellant was within the class of owners who under the statute are entitled to a jury trial, unless it be found in the statement of the grounds upon which the appeal was taken and trial by jury demanded, filed by it, in the court below. If the sewer had been constructed through the lands of the casting company, or it appeared from the record that the casting company had alleged before the viewers or in the court below, that its property was damaged, there might be reason for holding that there was no necessity for strict accuracy in the statement of the grounds upon which the appeal and demand for a jury trial was based, but in this case the appellant presented nothing outside of the statement filed which even tended to show that it was entitled to a jury trial. The statute limits the class of owners who are entitled to an appeal and a jury trial, and requires that the appellant shall state in the appeal the grounds upon or for which the appeal is taken. This necessarily implies that the grounds upon which the appeal is taken must be such as to bring the appellant within the class of those who are entitled to a jury trial. This appellant stated the grounds upon which it appealed and demanded a jury trial as follows: "The grounds upon and for which this appeal is taken are because the jury have assessed the lands of the appellant an amount greatly in excess of the benefits derived or to be derived from the said sewer; the jury have failed to allow a sufficient part of the costs of the said sewer for the public uses and value of the said sewer; and the jury have failed to recognize that the destruction of Lamokin Run is an injury to rather than a benefit to the said property.” This is nothing more than an- assertion that the viewers had made against the property of the appellant an excessive.assessment for benefits, and that the assessment against the public, the city, ought to' have been larger. The allegation that “the jury have failed to recognize that the destruction of Lamokin Run is an injury ■to rather than a benefit to the said property,” amounts only to •a complaint that the viewers in estimating the benefits had included an element which ought not to have been considered, and is not the equivalent of a direct declaration by the appellant- that the property had been actually injured. The condition of the record required that this appellant should specifically átate that its property had been injured, in order to entitle ■it'to^a jury trial.

“-"•The order of the court below, is affirmed.


text:
    Keller, Appellant, v. Philadelphia & Reading Railway Company.

      Negligence — Railroad.—Grade ' crossing — “Stop, look and listen”— Right angle collision.

    If a person approaches a railroad in a vehicle, and cannot, from his seat in it, have a view of the tracks, he must get down from it, and walk to where he can have a view.
    In an action against a railroad company to recover damages for personal injuries, a judgment for defendant will be sustained where the plaintiff testifies in substance that he was driving a horse hitched to a 'carriage; that he- stopped within eighteen or twenty feet of the railroad track at a place where he could not see the track to his right be-
    ■ cause of a row of houses standing close thereto; that to get such a view he would have to have gone upon the track; that his hearing was defective; that he neither saw nor heard a train approaching; that he then drove on to the track without again stopping and was immediately struck by a freight train coming from the right, killing his horse and ■ severely injuring himself.

      February 28, 1908:
    Argued Nov. 19, 1907.
    Appeal, No. 37, Oct. T., 1906, by plaintiff, from order of C. P. Bucks Co., Feb. T., 1905, No. 6, entering judgment for defendant non obstante veredicto in-case of Henry Keller v. Philadelphia & Reading Railway Co.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries and for the loss of a horse. Before Stout, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict for plaintiff for $1,130. The court subsequently entered judgment for defendant non obstante veredicto.

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

      Grim & Grim, for appellant.

      Henry D. Paxson and William C. Ryan, for appellee.
   Opinion by

Morrison, J.,

The controlling questions in this case were the negligence of the defendant and the contributory negligence of the plaintiff. There was sufficient evidence to carry the question of the negligence of the defendant to the jury. When the evidence was all in, the defendant’s counsel asked the court to say to the jury: “That under all the evidence in the case the verdict must be for the defendant.” This point was answered in the negative and the case went to the jury and a verdict for $1,130 was found in favor of the plaintiff. On motion for judgment non obstante veredicto, the learned court, in an elaborate opinion, entered such judgment in favor of the defendant.

The single assignment of error is: “The court erred in setting aside the verdict of the jury and in directing judgment non obstante veredicto to be entered.” In support of this assignment the learned counsel cites Ackley v. Bradford Township, 32 Pa. Superior Ct. 487. That case decides that the court has no power to enter a judgment non obstante veredicto, “where there is a conflict of evidence on material facts, or where the plaintiff’s right to recover depends not only upon his own testimony, but the inferences to be drawn from the facts and circumstances as adduced by other witnesses, or in general where the right to recovery depends upon disputed questions of fact, and the inferences to be drawn from them.”

Dalmas v. Kemble, 215 Pa. 410, is also cited and it is to the same effect, but in the present case the controlling testimony as to the plaintiff’s contributory negligence is given by himself and we propose to consider the case on the theory that he testified to the exact facts. His testimony, in substance, is that he was driving a horse hitched to a carriage and that he stopped within eighteen or twenty feet of the railroad track at a place where he could not see the track to his right because of a row of houses standing close thereto; that his hearing was defective; that he neither saw nor heard a train approaching; that he then drove onto the track without again stopping and immediately was struck by a freight train coming from the right; his horse was killed and he was severely injured. He further says that in order to have had a view along the track it would have been necessary for him to have gone upon the track and then looked to his right.

If this was the condition of things at the place of the accident, it was clearly his duty to have descended from his seat in the carriage and to have led his horse up to the track and then stepped upon it, and looked and listened for trains. Upon the facts testified to by the plaintiff, without disputing them, and without drawing any doubtful inferences, he palpably violated a well-settled rule of law applicable to his situation.

In Kintner v. Penna. R. R. Co., 204 Pa. 497, it is decided, as stated in the syllabus: “If a person approaches a railroad in a vehicle, and cannot, from his seat in it, have a view of the tracks, he must get down from it, and walk to. where he can have a view.” That case also decides that in a case like the present one, the court will determine, as a matter of law, that the driver was guilty of contributory negligence.

Mankewicz v. Lehigh Valley R. R. Co., 214 Pa. 386, is to the same effect. We might cite several other cases along the same line but it is unnecessary, as the above are controlling upon the undisputed facts in the present case. The doctrine of these cases applies with peculiar force to the present plaintiff because he was hard of hearing and for that reason, stopping at a place where he says he was familiar with the crossing and that he could not see the track from where he stopped, was not one whit better than if he had driven upon the track without stopping at all.

Wé have given careful consideration to the authorities cited by appellant’s able counsel and their argument, but they do not convince us that the learned court erred in entering judgment for the defendant non obstante veredicto.

The assignment of error is dismissed and the judgment is affirmed.


author: Morrison, 3.,

text:
    Homet, Appellant, v. Singer.

      Landlord and tenant — Lease—Quarry—Rental—Forfeiture—Demand for rent — Notice of forfeiture.

    In an action of ejectment it appeared that the plaintiff by an instrument in writing had “demised and let” to the defendant the right to quarry stone in the demised premises for a term of years. The defendant agreed “to quarry and remove from the quarry during the continuance of the lease an average of forty carloads of saleable stone per annum,” and to pay as a rent or royalty therefor the sum of $5.00 per carload. It was further provided that if the payment of the rental was not made within a time stated, the lessor might declare the lease null and void, and re-enter the demised premises. The lessee quarried seven loads of stone the first year and sixteen the second year. During these two years a large amount of worthless stone was removed and a large block of valuable stone uncovered, so that quarrying could have progressed rapidly during the third year. About three months after the expiration of the second year the lessor notified the lessee that the lease was at an end and null and void as far as the latter’s rights were concerned, and notified him to quit the quarry until he had paid the balance due under the lease, etc. The grounds of forfeiture were failure to take out the quantity of stone called for by the agreement and failure to pay for what was taken out. The lease did not specify where the rent was to be paid, and there was no evidence that a demand was made for it on the premises. Held, (1) that the agreement was a lease; (2) that the lease did not require the quarrying of forty carloads each year, but only an average of forty carloads for the whole term of years; (3) that as no demand had been made on the premises for the rent, the lessor was not entitled to a forfeiture for the failure of the lessee to pay the rent; (4) that the notice to the lessee was not a valid notice of forfeiture.
    To enable a lessor to declare and enforce a forfeiture, the right so to do must be distinctly reserved; the proof of the happening of the event upon which it is to be exercised must be clear; such right must be exercised promptly, and the result of enforcing the forfeiture must not be ■unconscionable.
    Where there is a condition of re-entry for nonpayment of rent, the lessor cannot re-enter unless he has made a demand of the precise rent due on the very day on which it becomes due, and on the most notorious place on the land, although there should be no person on the land ready to pay it.
    Argued Nov. 19, 1907.
    Appeal, No. 57, Oct. T., 1907, by plaintiffs, from order of C. P. Bradford Co., Sept. T., 1903, No. 528, refusing to take off nonsuit in case of Fannie Hornet et al. Executors and Devisees of J. A. Hornet, deceased, v. Grace Singer et al.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Ejectment for land in Asylum township. Before Fanning, P'- J‘
    The facts arc stated in the opinion of the Superior Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      J. C. Ingham, with him William Maxwell, for appellants
    In general, equity abhors a forfeiture, but not where it works equity and protects a landowner from the laches of a lessee, whose lease is of no value until developed: Munroe v. Armstrong, 96 Pa. 307; Brown v. Vandergrift, 80 Pa. 142; Chauvenet v. Person, 217 Pa. 464; Coal Co. v. Knight, 201 Pa. 23; Seeley v. Union Central Life Ins. Co., 10 Pa. Superior Ct. 270; Koch’s App., 93 Pa. 434; Watson v. O’Hern, 6 Watts, 362; Kennedy v. Crawford, 138 Pa. 561.

      February 28, 1908:
    We submit that under the conditions of this contract it was the duty of the lessee to take these royalties to the lessor at his residence or place of business, and the law will imply such a provision, if necessary, to carry out the manifest intention of the parties: Hand v. Suravitz, 148 Pa. 202; Tiley v. Moyers, 43 Pa. 404.

      I. McPherson and Chas. M. Colver, for appellees.
    — This is not a covenant or agreement to quarry and remove forty carloads during each or any year of the term, but “an average” of that number per annum during the term or “continuance of the lease: ” Phoenix Silk Mfg. Co. v. Reilly, 187 Pa. 526.
    Forfeitures are odious to equity; it is seldom it will enforce them even in a clear case, but never in a doubtful one: Wick v. Bredin, 189 Pa, 83; Pittsburg, etc., R. R. Co. v. Altoona, etc., R. R. Co., 196 Pa. 452; Westmoreland & Cambria Natural Gas Co. v. DeWitt, 130 Pa. 235; Haldeman v. Sampter, 2 Del. Co. Rep. 106; Thompson v. Christie, 138 Pa. 230; Lynch v. Gas Co., 165 Pa. 518; Aye v. Philadelphia Co., 193 Pa. 451.
    Before the grantee of a rent charge can enter for nonpayment of rent, he must make a demand of the precise amount due, on the day on which it became due, and on the most notorious part of the land; although the possession be vacant, and there be nothing to distrain: McCormick v. Connell, 6 S. & R. 151; Rea v. Eagle Transfer Co., 201 Pa. 273.
   Opinion by

Morrison, 3.,

This is an action of ejectment brought to enforce the forfeiture of a certain written lease between J. A. Hornet and Grace Singer, one of the defendants, dated November 9, 1900. At the close of the plaintiff’s testimony, the court granted a compulsory nonsuit and subsequently refused to take it off. This gives rise to the first assignment of error.

The lease above referred to “ demised and let unto the said lessee, above named, the right and privilege to quarry stone in and upon the following described premises .... together with the necessary land for a dump pile, for the term of ten years from the date hereof.

“The said lessee for herself agrees to quarry and remove from the quarry during the continuance of the lease an average of 40 carloads of salable stone per annum, said carloads not to exceed in weight the amount of 25 tons; and to pay to the said lessor, as a rent or royalty for the said quarry and privileges heretofore granted, the sum of five dollars per carload for each and every carload so quarried and sold. Said payment is to be made within thirty days after the stone are quarried, sold and delivered to the parties purchasing the same. It is further agreed and understood that should the said lessee fail or refuse to make the payments as aforesaid for the period of 30 days after the same become due and payable, or should she abandon said quarry for the space of 90 days in any working season for quarrying, or if she should let or sublet the whole or any part of the said quarry without the written consent of the lessor, or violate any of the agreements of this lease, then in either case said lessor may declare this lease null, and reenter and take possession of said quarry without any let or hindrance and without any process of law.”

We construe the agreement between the parties to be a lease and the relation of landlord and tenant is established thereby, and the sum of $5.00 per carload of stone quarried and sold is in the nature of rent: Watson v. O’Hern, 6 Watts, 362.

The learned counsel for the appellants states the grounds of forfeiture as follows: 1. A failure to take out the quantity of stone called for by the agreement. 2. A failure to pay for what were taken out. The action to enforce the forfeiture was begun early in the third year and therefore it is only important to consider the number of carloads of stone quarried and removed during the first year, which were seven, and during the second year, which were sixteen loads. The counsel contends that the lease required the lessee to quarry and remove, during the continuance of the lease, forty carloads of salable stone during each separate year. We do not think this is a correct construction of the covenant ón that subject. The language is: “The said lessee for herself agrees to quarry and remove from the quarry, during the continuance of the lease, an average of 40 carloads of salable stone per annum, said carloads not to exceed in weight the amount of 25 tons.” The plaintiffs are contending for a forfeiture after the defendant has entered and expended considerable labor and money in opening the quarry, making roads and providing facilities for removing the stone. The plaintiff’s evidence shows that a large block of valuable stone had been uncovered and such preparations made that the quarrying and removing could have progressed rapidly during the third year. The evidence also shows that a large quantity of worthless stone and material had been removed before the good stone were reached. The plaintiffs must, in this action, be bound by a strict construction of the terms of the lease on the well-settled doctrine that forfeitures are odious and must be strictly construed: Wick v. Bredin, 189 Pa. 83. Forfeitures are to be construed strictly: Westmoreland, etc., Nat. Gas Co. v. De Witt, 130 Pa. 235.

In Thompson v. Christie, 138 Pa. 230, which was an action of ejectment, the Supreme Court held, as stated in the syllabus: “The rule prevailing in equity is that, to enable a lessor to declare and enforce a forfeiture, the right so to do must be distinctly reserved; the proof of the happening of the event upon which it is to be exercised must be clear; such right must be exercised promptly, and the result of enforcing the forfeiture must not be unconscionable.”

In the present case the lessor served his notice of forfeiture on January 29, 1903, nearly three months after the expiration of the second year of the term. During this time the lessee continued her quarrying operations and actually shipped three carloads of stone. But we construe the lease to only require the lessee to take out an average of forty carloads of stone per annum during the whole ten years term, provided she did not abandon the quarry for the space of ninety days and there is no pretense that there was any such abandonment. It is useless to argue that this construction deprives the lessor of his annual royalty or rental for forty carloads per year. The answer to such argument is that the lease does not require the quarrying and removing of forty carloads each year. It provides in clear language that sufficient stone shall be quarried and removed to average forty carloads for each year of the ten-year term. Therefore it was impossible to declare and enforce the forfeiture early in the third year of the term, because there had not been forty carloads taken out during each of the first and second years. We think this principle is ruled in Phœnix Silk Mfg. Co. v. Reilly, 187 Pa. 526. We hold that the failure to remove forty carloads of stone for the first year and forty for the second year, furnishes no ground for forfeiture of the lease.

The next question is, did the nonpayment of rent work a forfeiture 'under the facts in this case? The lease made no provision as to where the rent should be paid; it does provide that if the lessee fail or refuse to make the payments for the period of thirty days after the same became due and payable, the lessor may declare the lease null and re-enter and take possession, etc. There is not a particle of evidence that the rent was ever demanded on the premises: “Where there is a condition of re-entry on nonpayment of rent, several things are required by the common law, to be previously done, to entitle the reversioner to re-enter. There must be a demand ■of the precise rent due, on the very day on which it becomes due, on the most notorious place on the land, although there should be no person on the land ready to pay it:” McCormick v. Connell, 6 S. & R. 151; Rea v. Eagle Transfer Co., 201 Pa. 273.

In addition to this the so-called forfeiture notice served January 29, 1903, upon the lessee, is not a valid notice of forfeiture. The lessor undertook to declare the lease null and void as to the rights of the lessee, but valid as to his remedies under it. The notice, in part, read: “I hereby notify you that I have declared said agreement and lease to be at an end find null and void so far as your rights are concerned, and you are hereby notified to quit the said quarry at once and not take therefrom any further stone whether quarried or not or remove any other property therefrom until you have paid the balance due under your said agreement and lease.”

Now turning to the lease, it gives the right under certain conditions for the lessor to declare it null and void, and reenter, etc. This clearly means that the lease is at an end or null and void. The lease contains no clause reserving the right to recover accrued payments of rent after forfeiture. As this lease is drawn, a forfeiture !of it by the lessor, for conditions broken by the lessee,' ended the lease as to both parties. If, after the notice of forfeiture was given, the lessor had collected his rent, that ground of forfeiture would fall: Wheeling v. Phillips, 10 Pa. Superior Ct. 634, and cases there cited. In Chauvenet v. Person, 217 Pa. 464, cited by appellant, the lease specifically provides that at the option of the lessor it shall become void, excepting as to the liability of the lessee herein.”

We will not be understood as deciding that the plaintiffs cannot maintain an action for damages if the lessee fails to operate the stone quarry with reasonable diligence. But that question is not now raised: Watson v. O'Hern, 6 Watts, 362.

We have carefully examined the ■ authorities cited by the learned counsel for the appellant and have considered his earnest argument, but we are not satisfied that any of the grounds of forfeiture set up were sustained by the evidence. There is nothing in the assignments of error requiring further discussion.

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