text:
    St. Clair v. Edison Electric Light Company, Appellant.

      Negligence — Electric light companies — Explosion in conduit — Upheaval of street — Evidence—Presumption of negligence — Res ipsa loquitur.

    1. Whore an electric light company in the exercise of its special franchises interferes with the ordinary right of the public to the injury of a citizen in the pursuance of that right by causing a violent upheaval in the street, a duty of explanation is on the company, when the place where the accident originated is beneath the ground in the exclusive care of the defendant, not accessible to the ordinary observation of persons outside, and if the thing can be explained at all that only can be done by the company. The doctrine of res ipsa loquitur applies in such a case, and the burden is on the defendant to disprove negligence.
    2. In an action against an electric light company to recover damages for personal injuries, there is sufficient evidence of negligence of the defendant, apart from the mere happening of the accident, to submit to the jury, where the plaintiff shows that his injuries were caused by the upheaval of a portion of the street where he was walking, that this was caused by the explosion in a conduit of the defendant, that a fire had been burning in the conduit for four hours before the accident with the knowledge of the defendant’s superintendent, that defendant’s employees removed the manhole covers letting in increased currents of air into the conduit without cutting off the electric current, although a fire official requested that it should be done, and that the letting of air into the conduit and continuing the electric current under the circumstances were in the opinions of persons expert in the business improper and dangerous acts.
    Argued Oct. 7, 1908.
    Appeal, No. 244, Oct. T., 1907, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1902, No. 2,396, on verdict for plaintiff in case of William G. St. Clair v. Edison Electric Light Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Sulzberger, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $400. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      R. Stuart Smith, with him Charles E. Morgan, for appellant.
    The plaintiff failed to prove any negligence on the part of the defendant.
    The plaintiff cannot recover in this action without proof of negligence: Kepner v. Traction Co., 183 Pa. 24; Aument v. Telephone Co., 28 Pa. Superior Ct. 610; Morgan v. United Gas Imp. Co., 214 Pa. 109; Morgan v. Duquesne Borough, 29 Pa. Superior Ct. 100; Sowers v. McManus, 214 Pa. 244.

      Samuel Galt Birnie, for appellee.
    The case is one which permits and requires an application of the principle of res ipsa loquitur, and incidentally that the application of this principle is not dependent necessarily or exclusively upon the presence of any contractual relation between the parties to the litigation: East End Oil Co. v. Torpedo Co., 190 Pa. 350; Morgan v. Electric Company, 213 Pa. 151; Fitzgerald v. Electric Illuminating Co., 207 Pa. 118; Daltry v. Electric Light, etc., Co., 208 Pa. 403; Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540.
    February 26, 1909:
   Opinion by

Henderson, J.,

The plaintiff’s right to recover does not depend on an inference of negligence to be drawn by the jury from the happening of the accident alone. There was evidence not only that he was injured by the violent uplifting of a portion of the surface of a public street on which he was lawfully walking, but that this uplifting was caused by an explosion in an electric conduit owned and used by the defendant; that a fire had been burning in the conduit from seven o’clock in the morning or earlier until after eleven of the same forenoon; that the defendant had knowledge of this state of affairs and its superintendent was present with several employees of the company at seven o’clock in the morning and during the forenoon engaged in an effort to extinguish the fire. In so doing they removed manhole covers and thereby increased the current of air and gas in the conduit and admitted air thereto, during all of which time the currents of electricity were in action along the wires in the conduit. While the fire was in progress an assistant foreman of the fire department who was present asked the superintendent of the defendant to have the electric current shut off. This the superintendent declined to do, saying there was no danger and that it would deprive the patrons of light. Two or three small explosions occurred in the conduit before that which caused the plaintiff’s injury. It was further shown by an electrical engineer conceded to be a competent expert that the opening of the manholes increased the danger and the likelihood of such an explosion as occurred and that it was recognized by those familiar with the subject as being a proper practice in such a case to smother out the fire by excluding air from the surface. It was also shown that the continuance of the electric currents through the conduit while the fire was there made it' more likely that an explosion would occur for reasons given by the witness. There was no testimony offered by the defendant and no contradiction, therefore, of the evidence for the plaintiff. Under this evidence it became a question of fact whether the defendant was negligent in keeping up the electric current in the conduit while the fire was in progress and in the manner adopted by its superintendent to extinguish the flame: Devlin v. Light Company, 198 Pa. 583; Sorrell v. Electric Traction Co., 23 Pa. Superior Ct. 425. The testimony of Professor Houston would justify the conclusion of a jury that if a different and well-known method of meeting the emergency had been adopted the accident to the plaintiff would not have occurred. The defendant is engaged in a business which calls for the exercise of the highest degree of practicable care and is bound to use the most approved methods in its management, and a failure so^ to do resulting in injury to one not connected with the company subjects the delinquent to liability for damages. It is not an excuse that the defendant called in the assistance of a portion of the fire department of the city to extinguish the fire, for this was not done until after the defendant’s employees had been engaged for more than four hours in an effort to accomplish that result. The complaint is not of a mistake of the fire department, but of the omission to cut off the electric current and to close in the fire to the end that it might be smothered out by noncombustible gas generated by the fire. It was shown that the accident happened under certain conditions and surrounded by particular circumstances. These facts are more than evidence of the accident merely; they amount to evidence of negligence.

The learned trial judge submitted the case to the jury on the doctrine of the inference of negligence from the happening of the accident under the circumstances of the case. In the opinion on the defendant’s rule for judgment non obstante veredicto, however, he expressed the view that there was evidence to take the case to the jury in addition to the occurrence itself. The position taken in the charge was that where the defendant in the exercise of a special franchise interfered with the ordinary right of the public to the injury of a citizen in the pursuit of that right, the duty of explanation is on the defendant, when the place where the accident originated is beneath the ground in the exclusive care of the defendant, not accessible to the ordinary observation of persons outside; and if the thing can be explained at all that can only be done by the defendant. The jury was accordingly instructed that it was the duty of the defendant to explain the occurrence. It is a well-known principle of law that negligence is never presumed. Generally speaking, it must be affirmatively proved. There are exceptions to this rule, however, as in the case of an absolute duty or a contractual obligation for due care. The maxim, “res ipsa loquitur,” expresses the law in such cases and permits an inference of negligence from the occurrence of the injury. There is another class of cases, however, where the rule has been applied where the circumstances were free from dispute and from which it appeared that they were under the exclusive control of the defendant, and that in the ordinary course of experience no such consequence happened as that complained of. This application of the doctrine was recognized in Transportation Company v. Downer, 78 U. S. 129, where it was said that an inference of negligence seldom arises from the simple occurrence of an accident, except where the accident proceeds from an act of such a character that, when due care is taken in its performance, an injury ordinarily ensues from it in similar cases, or where it is caused by the mismanagement or misconstruction of a thing over which the defendant has immediate control, and for the management or construction of which he is responsible. The principle is more explicitly expressed in Scott v. The London & St. Katharine Dpck Company, 3 Hurlstone & Coltman, 596. There the plaintiff was injured on the street by bags of sugar falling from a crane by which they were lowered to the ground from a warehouse owned by the defendant, and the court said: “There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his 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.” This statement of the law has been widely quoted and adopted. It is cited with approbation in the case above referred to and in Alexander v. Nanticoke Light Co., 209 Pa. 571. The same view is expressed by the present chief justice of the Supreme Court in East End Oil Co. v. Torpedo Co., 190 Pa. 350. It was there said that where the duty is not absolute but arises in the ordinary course of business it is essential that it shall appear that the transaction in which the accident occurred was in the exclusive management of the defendant, and all the elements of the occurrence within his control, and that the result was so far out of the usual course that there is no fair inference that it could have been produced by any other cause than negligence. To the same effect are Rose v. Transportation Co., 11 Fed. Repr. 438, in which the subject is discussed by Judge Wallace: Shearman & Redfield on Negligence (5th ed.), 77; Bridges v. Railway Co., L. R. 6 Q. B. 377; Shafer v. Lacock, Hawthorn & Co., 168 Pa. 497; Fisher v. Ruch, 12 Pa. Superior Ct. 240; 1 Thompson on Negligence, sec. 15.

The case now under consideration comes within the latter class. The defendant constructed the conduit under the street, placed its apparatus therein, operated it according to its own plans and methods and had exclusive control thereof. It was not subject to other inspection or observation than that of the defendant's employees. An accident happened, to wit: the up-heaving of the street, an effect not usually attending a structure such as the defendant maintained. It was an event so far out of the usual course as to warrant the inference that it could only have taken place because of negligence.

The appellant relies on Kepner v. Harrisburg Traction Co., 183 Pa. 24, and Aument v. Penna. Telephone Company, 28 Pa. Superior Ct. 610, as authorities sustaining its position, but the difference in the facts distinguishes those cases from this. Each of them related to a broken wire. In the first a horse was frightened by electric sparks; in the second, a horse was killed by a broken telephone wire which was in contact with a live electric wire. There was nothing in either case except the solitary fact of the broken wire from which an inference of negligence might be drawn, and in the telephone company case it appeared that a violent storm had broken wires all over the city. The wires-were open to the observation of every person near them, were subject to the action of the elements or to interference by strangers and could not properly be said to have been under the exclusive control of the owners. Nothing was presented tending to show that either of the companies had omitted any duty or neglected any means of guarding the public against possible injury. Tested by the rule applied in the foregoing cases the charge of the court was appropriate to the facts on the question of the inference of negligence. If there were any doubt, however,, upon this point we think the case was clearly for the jury on the affirmative evidence introduced by the plaintiff tending to establish negligence.

The judgment is affirmed.

Porter, J., dissented.


source: Caselaw Access Project

author: Orlady, J.,

license: Public Domain

text:
    Wahl, Appellant, v. Vetter.

      Waters — Diversion of waters — Trespass—Alley—Evidence—Case for jury.

      1. Each of two adjoining landowners has definite rights to the use and enjoyment of his property, and each must concede something, for the preservation of the other. Where conflict is irreconcilable, right to use one’s own must prevail, but the owner may do so without compensation only where the resulting damage is not avoidable at all, or where the expense of obviating it would be practically prohibitory.
    2. In an action to recover damages for injuries to a building by water, the case is for the jury where the plaintiff shows that the injuries were caused by a broken spout and a defective hydrant maintained on the defendant’s land, and that these defects could have been easily remedied.
    Argued Oct. 8, 1908.
    Appeal, No. 67, Oct. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., Dec. T., 1903, No. 370, refusing to take off nonsuit in 'case of Christiana M. Wahl v. Casper Vetter.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.

      February 26, 1909:
    Trespass to recover damages for injuries to a building. Before Ralston, J.
    The opinion of the Superior Court states the case.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      P. A. Wildermuth, for appellant.
    The defendant collected the rain waters that fell upon his shed into a broken spout, from which it was cast upon plaintiff’s property. Clearly he is liable for resulting injury: Kauffman v. Griesemer, 26 Pa. 407; Gould v. McKenna, 86 Pa. 297; Miller v. Laubach, 47 Pa. 154; Hays v. Hinkleman, 68 Pa. 324; Rhoads v. Davidheiser, 133 Pa. 226; McMahon v. Thornton, 5 Pa. Superior Ct. 495; Meixell v. Morgan, 149 Pa. 415; Jutte v. Hughes, 67 N. Y. 267; Pfeiffer v. Brown, 165 Pa. 267; Craig v. Borough of Shippensburg, 7 Pa. Superior Ct. 526; Patterson v. Dushane, 115 Pa. 334; Cover v. Manaway, 115 Pa. 338.

      William T. Connor, with him John R. K. Scott, for appellee.
    That a person owning land has a right to have the water therefrom flow through a natural drain, and is not bound to get rid of the .water in any other way, has been established by authority: Sowers v. Lowe, 20 W. N. C. 76.
   Opinion by

Orlady, J.,

The plaintiff and defendant are owners of adjoining property, separated by a two-foot wide alley. On the defendant’s property there is a shed covering a space of about sixty by twenty-two feet. The natural rainfall accumulating on the roof of this building is collected by gutters to one point and there discharged through a six-inch rain conductor at the alley line. This down-spout or conductor was broken a few feet from the ground, so that the water was diverted over the alley, instead of flowing into the place arranged for its vent at the end of the spout. No drain or any other arrangement was provided by the defendant to carry the accumulated water from his land. The defendant also maintains on his premises a stable for horses, and there is a water hydrant connected with the stable that was in such a state of bad repair that water flowed therefrom continuously.

This action of trespass was brought to recover damages caused by the accumulation of the water and the discharge thereof upon the plaintiff’s premises by which her building was injured. At the conclusion of the plaintiff’s testimony, the court granted a motion for nonsuit.

After a full examination of the testimony, we are convinced that a jury would have been warranted without further evidence, in concluding that the defective rainspout and hydrant were the direct cause of at least some of the injuries complained of by the plaintiff; and that these defects could have been easily remedied. The natural fall of water on the defendant’s premises could have been directed either over his own land, or on the public street, or the private alley in such a way as practically to obviate all damage. As was said in Pfeiffer v. Brown, 165 Pa. 267, “ It is not to be lost sight of that the defendant’s right to injure another’s land at all, to any extent, is an exception, and the burden is always upon him to bring himself within it. And his exception is founded on necessity and because otherwise he would be deprived of the beneficial use and enjoyment of his own land. Unless that would be the substantial result of forbidding his action, he is not within the immunity of any of the cases. ... If the expense of preventing the damage from his act is such as practically to counterbalance the expected profit or benefit, then it is clearly unreasonable, and beyond what he could justly be called upon to assume. If, on the other hand, however large in actual amount, it is small in proportion to the gain to himself, it is reasonable in regard to his neighbor’s rights, and he should pay it to prevent the damage, or should make compensation for the injury done. Between these two extremes lies a debatable region where the cases must stand upon their own facts, under the only general rule that can be laid down in advance, that the expense required would so detract from the purpose and benefit of the contemplated act, as to be a substantial deprivation of the right to the use of one’s own property. If damage could have been prevented short of this, it is injuria which will sustain an action.”

Each party has definite rights to the use and enjoyment of his property, and each must concede something for the preservation of the other. Where conflict is irreconcilable, right to use one’s own must prevail, but the owner may do so without compensation only where the resulting damage is not avoidable at all, or where the expense of obviating it would be practically prohibitory : Campbell v. Bessemer Coke Company, 23 Pa. Superior Ct. 374; Farver v. American Car, etc., Company, 24 Pa. Superior Ct. 579; Gavigan v. Refining Company, 186 Pa. 604.

Without explanation or contradiction, the plaintiff’s testimony shows that the defendant had control over the broken rainspout, as well as of the defective hydrant. Water accumulating in the spout should rightly be disposed of, so as not to damage an adjoining owner. The natural quantity of rainfall, and the flowage of water on the defendant’s land, were so concentrated as to be directed either against the plaintiff’s house or in close proximity to it. Whether the defendant did as claimed by the plaintiff’s testimony, divert this water from its natural course on to the plaintiff’s premises to her injury, was a question of fact which should be submitted to the jury: Miller v. Laubach, 47 Pa. 154; Magee v. Railroad Company, 13 Pa. Superior Ct. 187; Rhoads v. Davidheiser, 133 Pa. 226.

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


author: Orlad y, J.,

text:
    Kosciusko Oil Mill & Fertilizer Company v. Jackson, Appellant.

      Contract — Sale—Sample—Affidavit of defense — Practice, C. P.

    In an action to recover for goods purchased by an agent known to be such by the defendant, an affidavit of defense is sufficient which avers that the agent was authorized to purchase goods of a certain grade only, that on being informed that a purchase had been made, defendant requested samples, that the samples were up to grade, but that one-fourth of the goods first delivered were not up to grade and were returned, and that subsequent shipments were rejected.

      Argued Oct. 8, 1908.
    Appeal, No. 229, Oct. T., 1907, by defendant, from order of C. P. No. 4, Phila. Co., June T., 1906, No. 1,975, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Kosciusko Oil Mill & Fertilizer Co. v. Ellis Jackson, trading as Ellis Jackson & Co.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Béaver, JJ.
    Reversed.
    Assumpsit for goods sold and delivered.
    Rule for judgment for want of a sufficient affidavit of defense.
    The averments of the affidavit of defense are set forth in the opinion of the Superior Court.

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

      John Weaver, with him Frederick S. Drake, for appellant.
    The law of Mississippi in regard to sales of this kind is perfectly clear.
    It was held in Kinley v. Fitzpatrick, 4 Howard (Miss.), 59, that no particular form of words is necessary to make a warranty of quality, and an express affirmation as to the quality of the thing sold is sufficient.
    When the sale is by sample, the law implies a warranty that the goods sold shall correspond with the sample: Otts v. Alderson, 10 S. & M. (Miss.) 476.
    The law of Pennsylvania is as strong, if not stronger than the law of Mississippi on this point: Otts v. Alderson, 10 S. & M. 476; Hoffman v. Burr, 155 Pa. 218; Tete Bros. v. Eshler, 11 Pa. Superior Ct. 224; Morse, Williams & Co. v. Arnfield & Son, 15 Pa. Superior Ct. 140.

      Benjamin Alexander, with him Arthur F. Schneider, for appellee,
    cited: Grasselli Chemical Co. v. Purchasing Co., 22 Pa. Superior Ct. 426; Williams v. Sawyers, 155 Pa. 129; Worth v. Ellis, 4 Del. Co. Rep. 336; Fisher v. Kuhn, 54 Miss. 480; Jelks v. Barrett, 52 Miss. 315.

      February 26, 1909:
   Opinion by

Orlad y, J.,

This action of assumpsit was brought to recover a balance of $1,153.63, with interest on an alleged contract in writing as follows : — ■

“Kosciusko, Miss., October 4,1904.
“ Bought of Kosciusko Oil Mill and Fertilizer Company, Two hundred and Fifty bales (250) of linters mill run to be shipped in 25 bale lots of produce to Ellis Jackson & Company, Philadelphia, sight Draft. B/L attached on Ellis Jackson & Co., at 4Jc., f. o. b. Kosciusko.
“[Sig.] W. D. Hurlbutt.”

The plaintiffs then wrote to the defendants as follows: “October 6, 1904, We beg to advise you that we have sold to Mr. W. D. Hurlbutt, 250 bales of our linters, and he has instructed that we ship same to you in 25 bale lots, as fast as made, sight Draft and B/L attached, at the price of 4|c. per lb. f. o. b. here. Please confirm this in order that our files may be complete; ” to which the defendants replied as follows: “Octoher 8th, 1904, Gentlemen: — We ask that you send us at once a sample of the linters just contracted from you by Mr. Hurlbutt. He wrote us he has bought about 250 bales and we would like to see samples of what the stock will be.”

The facts averred in the affidavit of defense are substantially that Hurlbutt was authorized by the defendants to make a contract only for the purchase of a product of a quality known as No. 1 linters, and for this reason they insisted that a sample should be submitted to them, before they would confirm the purchase, as made by Hurlbutt, and in response .to that request they received, about October 28, 1904, samples which were equal in grade and quality to the kind prescribed; seventy-five bales of linters were shipped to the defendants, which on examination were condemned, as not being equal to No. 1 linters, and did not correspond and were not equal to the samples furnished by the plaintiff company to the defendant, by reason of their containing a large quantity of cotton seed, dirt and dirty colored linters, and appeared to be what is known in the trade as false pack linters, The plaintiffs were promptly notified of this alleged defect, and by letter of November 26, they replied: “We have considerable stock of linters on yard and have examined same on both sides, and we fail to find anything that will equal the sample sent us. The only inference we can draw is, that the night force must have thrown some moats into the bale from which you send us sample. The flue we had in use was in our opinion putting too much dust in the linters and affecting the color .... and ask that you kindly furnish us immediately some instructions for the balance of our contract with you.” The defendants then replied under date of December 1,1904: “As previously stated to you, we sold some of these goods at a loss, and both lots have been returned to us rejected on account of the seed and other poor stock in the bales. . . . We much prefer to ship the goods back to you, and then you can see for yourself what we are complaining about.”

Further shipments were sent and were not accepted by the defendants, and they were subsequently sold by the plaintiffs, the resultant price being credited to the account, so as to leave the balance as called for in this action. The court below made absolute a rule for judgment, for want of a sufficient affidavit of defense, without filing any opinion.

The entire correspondence is attached to the pleadings, and from this it is apparent that the authority of Hurlbutt was limited to the purchase of No. 1 linters, and that the plaintiffs desired confirmation of their original order before closing the contract, and also that the defendants insisted on a sample of the linters contracted for by Hurlbutt, to be certain that they were of the kind and quality desired by them. It is specifically averred that the linters furnished were not of the kind, quality or value of those contracted for, and it is difficult to see how a more specific denial could be stated. It is further averred that if the 250 bales of linters which were sold by the plaintiffs after the defendants had refused to accept them, had been of a quality equal to No. 1 linters as originally represented and warranted, they could have been sold in the open market at a profit of one cent per pound, and not at a loss. The plaintiffs knew that Hurlbutt was but an agent, and it must assume the burden of showing the extent of his right to bind his principal. This has not been met in the plaintiffs’ case, and is particularly denied in the affidavit of defense. We feel that the case is a proper one for a jury, the disputed question being of fact and not of law.

The judgment is reversed with a procedendo.


author: Hendebson, J.,

text:
    Harrison v. Atlee, Appellant.

      Sale — Sale of bonds — Loan—Interest.
    1. Where a sale of bonds is accompanied by an agreement in writing by the vendor with the vendee that “we will carry the above bonds for you charging interest at the rate of six per cent,” the agreement does not constitute an obligation on the part of the vendor to carry the bonds for the vendee, so long as the vendee pays six per cent on the purchase price, but it constitutes either a demand loan, or at the most an agreement for the postponement of the payment for the bonds, for a reasonable length of time.
    2. In such a case where the vendors carry the bonds for fourteen months, and sell them after notice to the vendee, and then bring an action to recover the difference between the contract price and the price brought at the sale, and the vendee in his affidavit of defense raises no question as to the reasonableness of the time, the vendor will be entitled to judgment for want of a sufficient affidavit of defense.
    Argued Oct. 9, 1908.
    Appeal, No. 16, Oct. T., 1908, by defendants, from order of C. P. No. 1, Phila. Co., Dec. T., 1907, No. 1,298, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles C. Harrison, Jr.', to the use of Charles C. Harrison, Jr., Harry W. Harrison and Stephen Fuguet, copartners, trading as Charles C. Harrison, Jr., & Company, v. George B. Atlee and Wilson Woelpper, copartners, trading as George B. Atlee & Co..
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a contract.
    From the record it appeared that.plaintiff sold to defendant certain bonds as shown by the following letter:

      “Philadelphia, September 7, 1906.
    “Dear Sirs:
    “This will confirm sale to you to-day of eleven thousand ($11,000) dollars Philadelphia and West Chester Traction Co. General Mortgage 4% Bonds, interest January and July, due 1954, at 93 and interest. It is understood that we will carry the above bonds for you charging interest at the rate of 6%. “Will you please also confirm this transaction, and oblige “Very truly yours,
    “[Signed] Chas. C. Harrison, Jr.,
    “ Per Stephen Fuguet.
    “Messrs. Geo. B. Atlee & Co.,
    “ 119 South Fourth St.,
    “Philadelphia.”
    Subsequently the plaintiff repurchased some of the bonds. On November 8, 1907, plaintiffs tendered the balance of the bonds to the defendants, but the latter refused to take them up. On November 14, 1907, the defendants were notified that the bonds were to be sold on November 20, 1907, and on that date they were sold for eighty-five per cent of their face value. Suit was then brought against the defendants to recover the difference between the contract price and the price realized at the sale.
    Defendants’ affidavit set up payment of all interest due up to date of sale.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Wm. Clark Mason, of Mason & Edmonds, for appellants.
    The contract constitutes an agreement on the part of the vendor to carry said bonds for vendee, so long as vendee pays six per cent on the purchase price: Singerly v. Thayer, 108 Pa. 291; Seeley v. Welles, 120 Pa. 69; Boiler Works v. Schnader, 155 Pa. 394; Nelson v. Von Bonnhorst, 29 Pa. 352.
    If, however, we assume, for the sake of arguing the other theory upon which judgment may have been entered, that the law will require the termination of this contract within a reasonable time, it still follows that the judgment was erroneoúsly entered by the learned court below: Shepler v. Scott, 85 Pa. 329; Wright v. Gas Co., 2 Pa. Superior Ct. 219; Muskegon Curtain-Roll Co. v. Keystone Mfg. Co., 135 Pa. 132; Iron City Commercial College v. Kerr, 3 Brewster, 196.
    February 26, 1909:

      Malcolm Lloyd, Jr., with him Reynolds D. Brown and Charles H. Burr, for appellees.
    A loan of money is payable on demand, where no time for payment is fixed: Colburn v. First Baptist Church, 60 Mich. 198 (26 N. W. Repr. 878); Rhoads v. Reed, 89 Pa. 436; Demarest v. McKee, 2 Grant, 248; Bank of Columbia v. Hagner, 26 U. S. 455; Agens v. Agens, 50 N. J. Eq. 566 (25 Atl. Repr. 707).
   Opinion by

Hendebson, J.,

The defendants plant their defense on an inference which they draw from their contract with the plaintiff. They undertake to distinguish this contract from others relating to the payment of the price of chattels where no time is fixed for such payment because of the provision in the agreement that the plaintiff would “carry the above bonds” at the rate of six per cent interest. The effect of this is said to be to create a liability on the part of the vendor to carry the loan indefinitely at the option of the defendants. It would appear from the terms of the agreement that it was understood between the parties that the price of the bonds was to be charged against the defendants and the bonds held by the plaintiff as security for the payment of the debt. It would seem, also, that the transaction implied further negotiation as to the time during which the loan was to be carried or that the parties had in view a custom between brokers not disclosed in the contract or the affidavit of defense. It would follow as a legal consequence of the extension of credit to the defendants that they became liable to pay interest for the time the indebtedness existed, and the rate of interest named is only that which the law would fix in the absence of any agreement of the parties. It is a rule which the appellants do not controvert that where no time is specified in a note or other obligation for the payment of money the parties are presumed to have intended that the money should be payable immediately: Demarest v. McKee, 2 Grant, 248; Rhoads v. Reed, 89 Pa. 436; Bank of Columbia v. Hagner, 26 U. S. 455. When the sale was completed and the defendants were charged on the plaintiff’s books with the purchase price of the bonds the title to the latter vested in the defendants, subject to the payment of the purchase money, and the obligation to pay on demand arose. This presumption is not overcome by the provision for the payment of interest. An agreement to lend money without a period fixed at which repayment is to be made is not an agreement for a perpetual loan although the parties may have stipulated that while the indebtedness existed interest should be paid. To hold that this contract was an agreement on the part of the plaintiff that he would never call for the payment of the debt as long as the interest was paid is to attach to it a condition not expressed in the letters passed between the parties, nor inserted into the contract by legal implication. A provision so unusual in a contract should be clearly set forth. The authorities cited by the appellants do not sustain their position. In Singerly v. Thayer, 108 Pa. 291, it was expressly agreed that the machinery installed by the plaintiff was warranted satisfactory in every respect, and the court very properly held that where there was an agreement to furnish an article to the satisfaction of the purchaser it was not a compliance with the contract to prove that he ought to have been satisfied. Nelson v. Von Bonnhorst, 29 Pa. 352, was a case in which the plaintiffs sued on a sealed instrument in which the defendant bound himself to pay “whenever in my opinion my circumstances will enable me to do so.” Such an obligation created no legal duty enforceable at law because it was agreed that the debtor should be judge of the time when he was able to pay. The defendant was relieved by the very terms of the contract. The view of the contract under consideration most favorable to the appellants is that it provided for the postponement of the payment for the bonds for a reasonable length of time and this, the plaintiff alleges in the declaration, was allowed. It was not until after the lapse of fourteen months from the purchase by the defendants that the plaintiff's assignees sold the securities and applied the proceeds on the debt. This was done after demand for payment and after notice to the defendants that the bonds would be so sold at a date named unless they were redeemed in the meantime. There is no denial in the affidavit of defense that the time allowed the defendants was not a reasonable time and there is nothing in the transaction from which it might be inferred that such was the case. There is no question of fact raised by the pleadings, therefore, on which an appeal could be made tó a jury. What is a reasonable time for the performance of a contract is ordinarily a question of fact for a jury where a dispute is raised on that question. But as that controversy is not raised here by the affidavit of defense the case cannot be disposed of as if there were such an issue.

We think the case was properly decided and the judgment is affirmed.


author: Head J.,

text:
    Powell v. Clawson, Appellant.

      Contract — Sale—Chattels—Retention of title.

    An agreement in writing for the sale of chattels, which provides that the seller shall retain title until a certain portion of the purchase money is paid and the balance secured in a manner satisfactory to himself, is a perfectly valid contract between the parties. If the purchase money be not paid or secured, and if the seller resumes possession of the chattels, at a time when they are free from lien, he may retain that possession as against an execution creditor of the purchaser whose writ did not issue until after the resumption of such possession.
    Argued Oct. 12, 1908.
    Appeal, No. 47, Oct. T., 1906, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1906, No. 777, on verdict for plaintiff in an interpleader in case of Elmer E. Powell v. William S. Clawson.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Feigned issue on a sheriff’s interpleader.
    At the trial the jury under binding instructions returned a verdict in favor of the plaintiff.
    On motion for a new trial Audrenied, J., filed the following opinion:
    This is an issue under the sheriff’s interpleader act to determine the title to certain horses, harness, carriages and stable furniture and fixtures taken in execution as the property of H. H. Price under a judgment obtained against him by William S. Clawson and claimed by Elmer E. Powell, in whose possession they were found by the sheriff. It appeared at the trial that the chattels had, prior to December 6,1905, belonged to Powell, who had employed them in carrying on a livery stable business at Nos. 832 and 834 North Forty-third Street, in the city of Philadelphia, and who, on that day, by an agreement in writing, bound himself to sell them to Price for the sum of $5,000, $1,000 whereof was then paid by the latter in cash. On or before January 10, 1906, a second payment of $1,000 was to be made to Powell, who, upon receipt thereof and of security satisfactory to him for the balance of the purchase money, was to give title and possession of the chattels mentioned to Price. It was stipulated that until this was done the title to the articles embraced by the agreement should remain in Powell, who was to continue the business at the livery stable under the name of H. L. Collins, manager, in which he was then carrying it on. The profits of the business were to be credited on the purchase money that Price was to pay, or were to be paid him should he fail to comply with the terms of his agreement. Time was made of the essence of the agreement, and it was provided that if Price should default in his second payment, or refuse to carry out all of the terms agreed upon, his first payment of $1,000 should be retained by Powell as liquidating damages for his breach of contract.
    Without waiting for the second $1,000, Powell turned the livery stable and its contents over to Price, and the latter thereupon proceeded to carry on the business, appropriating the profits to himself, but conducting the stable under the name of H. L. Collins, manager. Certain sums were from time to time paid by Price to Powell on account of the payment due on January 10, 1906; but whether these, as Price contends, aggregated somewhat more than $1,000, or fell considerably short thereof, as is insisted by Powell, is immaterial for the purpose of disposing of the case. For the remainder of the purchase money Price failed to give or tender to Powell security, satisfactory or otherwise. After repeated demands for what he claimed to be still owing on the payment due him on January 10,1906, and for security for the balance of their price, Powell, on May 28,1906,.during the absence of Price, who had been arrested in another matter, took possession of the contents of the livery stable. On June 5, 1906, a judgment was entered against Price in favor of Clawson, by confession, for $531.08 on a note given by the former to the latter under date of March 22, 1906; and, on the same day, the chattels of which Powell had taken possession were seized by the sheriff in execution under that judgment. Upon these facts binding instructions for a verdict in favor of the plaintiff were proper.
    It is conceded that the agreement between Powell and Price effected a conditional sale by the former to the latter of the chattels in controversy. As far as concerned his creditors, this vested the title to the contents of the livery stable in Price, and so long as they were in his possession they might have been seized by the sheriff under execution against him. But, as between themselves, the rights of the parties to this transaction were governed by the written contract, and their agreement that the title to the chattels should not pass until they were paid for or until payment of the unpaid purchase money was secured, was valid and binding upon them: Haak v. Linderman, 64 Pa. 499; Brunswick & Bailee Co. v. Hoover, 95 Pa. 508. Under that agreement the title to the articles in dispute continued in Powell, and until Price had paid or given security for what he owed on them, or the rights of bona fide purchasers or execution creditors had intervened, he had the right to resume possession of them, if he could do so peaceably, or, by appropriate proceedings at law, to compel their return: Krause v. Commonwealth, 93 Pa. 418. The present case is ruled by the decision in Hineman v. Matthews, 138 Pa. 204. It was there held that where one who had sold goods on condition that their title should not pass until he was paid for them permitted the vendee to take them before the day for payment, but subsequently on default of payment on the day appointed took them back into his exclusive possession, the goods could not afterwards be lawfully seized in execution as the vendee’s property. The facts of that case are quite analogous to those involved in the case at bar. Price’s right to the chattels which he had agreed to buy was defeasible by the terms of his contract. Before Clawson appeared upon the scene Powell, acting strictly within his contract rights, retook the property. It would seem that he should now repay to Price all that he had received from the latter- on account of the purchase money in excess of the sum of $1,000, but, however that may be, Price’s rights in and to the chattels were ended on May 28, 1906, eight days before the levy of the execution of the defendant in this issue. Since no lien had attached in favor of Claw-son, when, by retaking the chattels contained in the livery stable, in pursuance of his contract rights, Powell eliminated Price from further connection with them, and since there is no evidence that this step was taken in collusion with Price for the purpose of defrauding the latter’s creditors, Clawson’s execution did not bind the chattels, whose title is now in issue. “An ordinary sale of personal property by the defendant in an execution, if made in good faith before the writ comes in the hands of the sheriff, is good, even though it be made at an earlier hour of the same day. ... If this be true of a voluntary transfer, much more must it be of an involuntary one which is enforced according to the terms of a previously existing contract on which the goods are held,” per Archbald, J., whose reasoning is approved by the Supreme Court in Durr v. Replogle, 167 Pa. 347.
    The defendant’s motion for a new trial is overruled and judgment may be entered in favor of the plaintiff on the verdict.

      Error assigned was in giving binding instructions for Powell.

      February 26, 1909:

      Daniel W. Simkins, for appellant.
    The title passed to Price: Frech v. Lewis, 218 Pa. 141; Burt v. Kennedy, 3 Penny. 238, Bowen v. Burk, 13 Pa. 146; Leedom v. Philips, 1 Yeates, 527.

      John Creth Marsh, for appellee.
    Price failed to carry out his agreement and Powell was in undisputed possession and control of the goods before the rights of third parties intervened: Hineman v. Matthews, 138 Pa. 204; Durr v. Replogle, 167 Pa. 347.
   Opinion by

Head J.,

Powell was the owner of a number of horses, coaches, sleighs and other chattels with which he operated a boarding and livery stable in Philadelphia. The business was conducted under the name of H. L. Collins, manager. In December, 1905, he made an agreement with one Price to sell to him all of said property. The agreement was reduced to writing and executed by the parties. As the integrity of the writing is in no way assailed, the terms and conditions of sale are fixed, and it becomes a question of legal construction to determine what rights were conferred, what obligations imposed on the parties by the contract they made. The purchase money was $5,000. One thousand dollars were to be, and were, paid on the execution of the agreement. A second payment of like amount was to be made on or before January 10, 1906. It was further provided, “that the title of the said goods and chattels shall remain in said Powell and that said business shall be continued in the name of H. L. Collins, Manager. The said Powell, however, covenants and agrees to give title and possession and to make delivery of seisin to said Price upon said Price making the said second payment of $1,000 and giving to said Powell security, satisfactory to said Powell for the balance of the purchase price,” etc.

That the second payment was not made on time is conceded, but partial payments were made on account and accepted and extensions given until the end of May, 1906. A meeting was had on May 26, when the account was gone over. The parties differ as to the result arrived at. Price testifies the account showed he had fully paid the second payment. Powell asserts there was then still due a balance of more than $200 and that he gave Price until the next day to pay. However this disputed fact may be, it is clear that Price never gave or tendered to Powell the security for the balance of the purchase money, required by his contract. Until he did this he could not assert, as against Powell, possession or the right of possession of the property in the teeth of the contract out of which alone sprang any rights he had. On May 31, 1906, Powell resumed full possession of the property, terminating any partial possession which Price, or his employees, had been permitted to take while he was making payments on account.

The contract, whilst it provided for a retained possession by the vendor, was perfectly valid and binding between the parties. No principle of law or rule of policy forbids the making of such a contract. There was no moral or legal obligation resting on Powell to turn over his property to a stranger who had neither paid nor secured the price of it. No court of law or equity would aid Price in enforcing his claim to possession until he had performed the condition which must precede his right. Frech v. Lewis, 218 Pa. 141, and other cases cited in appellant’s brief have no application because they dealt with transactions where a retained possession was neither contemplated nor provided for. We are satisfied, therefore, Price could not have successfully challenged the possession of Powell, as matters stood on May 31, 1906.

On that day no intervening right had vested in anybody. On June 5 following Clawson caused a 'judgment, on a note with warrant of attorney, to be entered against Price. An execution issued and the property in question was levied on as the property of Price. Powell claimed it and an issue was duly framed to try the title. The learned trial judge gave binding instructions in favor of Powell, the defendant, and Clawson appealed.

That Clawson could not, by his later levy, successfully assail the rights of Powell, long before intrenched in possession under a clear legal right, is ruled in Hineman v. Matthews, 138 Pa. 204; Durr v. Replogle, 167 Pa. 347. The former is practically “ on all fours” with the case at bar. This is clearly pointed out in the careful and satisfactory opinion of the learned trial judge refusing a motion for a new trial, which, fully, we think, vindicates the judgment he entered.

Judgment affirmed.


author: Beaver, J.,

text:
    Smith v. Smith, Appellant.

      Trusts and trustees — Equity—Jurisdiction—Shares of stock — Statute of limitations.

    Where a daughter holds in her own name shares of stock belonging to her mother under an arrangement by which she is to sell or buy stock as her mother may direct, the daughter may, after the death of the mother, be compelled in a suit in equity to transfer the shares to her mother’s administrator. The bill filed for such a purpose is not to compel specific performance, but to enforce a trust. In such a case the daughter cannot set up the statute of limitations as a defense, inasmuch as the services which required the stock to be kept in the daughter’s name were not completed until the mother died, and the daughter made no adverse claim until that time.
    Argued Oct. 12, 1908.
    Appeal, No. 29, Oct. T., 1908, by defendant, from decree of C. P. No. 2, Phila. Co., Dec. T,, 1906, No. 769, on bill in equity in case of Samuel P. Smith, Administrator of Estate of Eliza Smith, deceased, v. Emma Smith.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity to enforce a trust.
    Barratt, J., filed the following opinion:
    The defendant was very much concerned in her mother’s lifetime lest her brother, Samuel P. Smith, might assert that all of the shares of stock, as well those rightfully her own as those owned by her mother, were the property of her mother; that she expressed a desire that her ownership of such shares as were her own should be acknowledged in writing by her mother, in' order to avoid dispute; that she expressed this desire at a meeting on June 6, 1896. This meeting was participated in by the said Emma Smith, the said Eliza Smith, by an aunt, Mrs. Mary Little, and by Joseph K. Gamble and his wife, Mrs. Mary Gamble.
    At the said meeting, and pursuant to the defendant’s request, in which Mrs. Eliza Smith joined, a schedule was accordingly made, in writing, containing a list of the shares of Pennsylvania Railroad stock owned at that date by the mother and daughter respectively. The memorandum stated that 122 shares were owned by the mother, and thirty-nine by the daughter, making 161 shares in all. This memorandum was entered in a little memorandum book, and was read to the daughter. She assented to its correctness, saying that it was right, that she was glad it was drawn. It was thereupon signed by the mother, and by Mrs. Little as a witness. The reason that it was signed by the mother was that the parties supposed that she was the proper one to sign, as the memorandum was intended to be used by the daughter to prove the ownership of the thirty-nine shares in case the brother asserted that they belonged to the mother.
    Nearly two years later, on or about February 10, 1898, the 161 shares were sold at a profit. The 161 shares so sold were handed to the witness, Joseph K. Gamble, for that purpose. The mother took hers from about her person. The daughter brought those that she owned from another room. The witness says of those handed over by the mother to be sold: “There were a great many very old ones; they had them back from the first period. They were an accumulation of twenty-odd years.”
    With the proceeds of the sale in February, 1898, plus a small additional sum, there were purchased on or about March 3 of that year, 170 shares, so that nine additional shares were thus acquired. Of this increase, the mother took two shares and the daughter took seven shares, and the mother then owned 124 shares and the daughter forty-six.
    The nine shares additional were acquired in part through an excess in price at the time of the sale in February as compared with, the price at the time of purchase in March, and in part through moneys advanced by the mother on behalf of herself and of her daughter.
    The 170 shares thus purchased were evidenced by two certificates, both in the name of the daughter, Emma Smith. One certificate was for 100 shares, and was No. 520,882. The other certificate was-for seventy shares, and was No. 520,884. The ownerships, however, were not ip the proportions indicated by this division, but as stated above, namely: 124 shares were the property of Mrs. Eliza Smith, and forty-six shares belonged to Emma Smith.
    The sale and purchase were attended to by Mr. Gamble. He testifies that two certificates rather than one were obtained, because it seemed safer to him to have it divided in that way, as he thought it more dangerous for two women living alone to have all the stock in one certificate. He testifies that he had one made out for 100 shares, because shares are often sold by the hundred, and that the balance of seventy shares made up the other certificate. He testifies that the reason for putting the stock in Emma’s name was this: “Mrs. Eliza Smith had agreed through Miss Emma Smith to have the stock made in her name, that if it was sold again quickly for a profit, they would have no calling in of witnesses to witness her mark. That was the reason for putting it in her name.”
    The mother at that time was seventy-six years old.
    On June 11, 1898, the same parties who held the meeting in 1896 met together again at the house where the mother and daughter resided. At this meeting, at the joint request of Mrs. Smith and Miss Emma Smith, the memorandum of June 11, 1898, was dictated by Joseph K. Gamble, and was entered by his wife in the memorandum book. It was thereupon signed like the previous one, by the said Mrs. Eliza Smith, and for the same reason. It read as follows:
    “Philadelphia, June 11, 1898. I, Eliza Smith, do certify and declare under my hand and seal of this date in presence of witnesses that I am the owner of one hundred and twenty-four shares of Pennsylvania Railroad stock that is in the name of my daughter, Emma Smith, and the balance and the remainder is her own personal property, bought and paid for by her in cash. I certify to this fact that it will avoid any mistake or dispute in the future, and it is subject at any time to be of less amount if necessity requires me to sell, and she is the absolute owner of forty-six shares at this date.”
    her
    . “ Eliza x Smith.
    “Witnesses:
    “Joseph K. Gamble.
    “Mary Little.”
    Some time after 1898 the daughter gave the two certificates to Mr. Benjamin T. Lyle, who was a relative by marriage, for safe-keeping. On March 25, 1902, the certificate No. 520,882, for 100 shares, was canceled at the request of the daughter, and a new one was issued for the same number of shares, but in the name of the mother, Eliza Smith. This certificate was delivered by Mr. Lyle to the plaintiff, administrator of Eliza Smith, after the latter’s death. Mr. Lyle testifies respecting the cancellation of the older certificate and the substitution of the new one in the mother’s name, as follows: “ She (Emma Smith) came into my office and asked me to have that done, and I asked her what for, and she says, 'Mom desires it; if anything would happen to Mom there would be no trouble if this was done because they are hers, whether I paid part for them or not, I don’t care.’ ”
    Mr. Gamble testifies that in December, 1905, a few weeks before the mother’s death, he was consulted by the mother and daughter relative to the question whether it would be wiser for them to sell the stock in order to purchase other securities. He advised them, he says, not to sell. He testifies that during this conversation, Emma Smith stated that she was the owner of forty-six shares.
    Eliza Smith, in the presence of Emma Smith, stated during this same conversation that she, Eliza Smith, had 124 shares of stock. Mrs. Gamble says:. “ When her mother spoke of having her 124 shares changed she said,' I have forty-six shares and I would like to change it if mother changes hers into bonds.’ ”

      After the mother’s death there was a meeting on February 6, 1906, at Mr. Lyle’s house in Germantown. It was attended by Mr. Lyle, by the plaintiff and the defendant, and by Mr. and Mrs. Gamble. The book already mentioned was read aloud by Mr. Gamble, in the presence of all, including the defendant. The defendant made no remark respecting the book nor in regard to the reading, but immediately afterwards left the room.
    It must be found, from the foregoing, that in 1898, a continuing trust was created in Emma Smith to hold and keep for her mother, Mrs. Eliza Smith, 124 shares of stock of the Pennsylvania Railroad Company, in order to facilitate the speedy sale from time to time of the shares, according to stock market conditions, and this with privacy, without the observation of neighbors who might have to be called in as witnesses, were the stock in the mother’s own name. The mother was old, and unable through age to write her name, and the quickness and privacy were best secured, it was thought, by the method adopted.
    The defendant denies that her mother purchased 124 shares with her own money, in March, 1898. She swears that she never saw the memorandum book until it was produced in evidence in court in this proceeding. She denies that she holds twenty-four or any shares of stock belonging to her mother. She denies the account given by Mr. and Mrs. Gamble of conversation in December, 1905.
    There is nothing in the evidence to show how the right in the mother to have the certificate in Emma Smith’s name replaced by one in the mother’s name, in March, 1902, originated, unless the testimony by the witnesses of the creation of the trust in 1898 is believed. The testimony as to the entries in the memorandum book does explain it, and nothing else does. But that testimony establishes not only that the 100 shares were held in trust, but that twenty-four of the remaining seventy were held by Emma Smith upon the same trust.
    The testimony is given by two disinterested witnesses. It is clear and positive, and it is corroborated in part by the entries in the memorandum book, and by the conduct of the respondent in placing a portion of the shares in her mother’s name in 1902.
    Mr. Peace, a counsel for the respondent, urges that the income of the decedent, Mrs. Eliza Smith, was altogether too small to allow of the accumulation of money sufficient for the ownership by her of 124 shares of Pennsylvania Railroad stock. This need not be dwelt upon, for the reason that her financial resources in former years were not shown. It may be observed, however, that when she produced certificates of stock to Mr. Gamble in 1896, many of them, he testified, were very old, from the beginning, and this is a strong indication that the mother’s property came largely and perhaps entirely from early years. But the court cannot enter into probabilities.
    It is argued on behalf of the respondent that she worked at least thirty-six years, and that she earned on an average $9.00' per week, and that her only expense was her own maintenance; and hence that she has been abundantly able to purchase in her own right seventy shares and more. In corroboration of this, purchases by her in recent years were shown. Mr. Lyle testifies that he has bought other stock for her as follows: May 24, 1901 — 16 shares; July 1, 1903 — 15 shares; August 16, 1906 — 9 shares.
    Thus in less than five years and a half, he bought for the defendant forty shares, which must have cost her in the neighborhood of $2,400, an average annual cost of over $400.
    The court need not consider, however, the prosperity of the defendant. Positive evidence, which there is no reason to question, shows that she accepted a continuing trust in 1898 to hold the stock in question for her mother, to sell or to hold as the mother should direct, and that she continued to hold twenty-four shares upon that trust until her mother’s death in 1906. •
    The defendant argues that equity has no jurisdiction in this case, because the bill seeks specific performance for an undertaking to deliver shares of stock, and that if a wrong has been done by refusal so to do, there can be compensation in damages, for which action must be brought at law: Edelman v. Latshaw, 159 Pa. 644; Roland v. Bank, 135 Pa. 598; Foll’s Appeal, 91 Pa. 434; Dungan v. Dohnert, 11 W. N. C. 303; 3 Parsons on Contracts, 364.
    The answer to that argument is that the present case is not one for the specific performance of a contract. It is a case of trust. Equity has jurisdiction in order to ascertain and vindicate the trust.
    In 2 Story’s Equity Jurisprudence (13th ed.), sec. 718, the author, after alluding to the general rule not to entertain jurisdiction in equity for a specific performance of agreements respecting chattels, says that cases may readily be enumerated which are and have been deemed fit for the exercise of equity jurisdiction;-to which the editor, Mr. Bigelow, adds in a note: “So in general where there is a relation of trust in respect of the property: Pooley v. Budd, 14 Beav. 34; Cowles v. Whitman, 10 Conn. 121; Hill v. Rockingham Bank, 44 N. H. 567; Clark v. Flint, 39 Mass. 231; Peer v. Kean, 14 Mich. 354.-”
    In Hill v. Rockingham Bank, 44 N. H. 567, it was held that a bill in equity will lie to compel the delivery of certificates of stock to one who has already the equitable title to such stock. The court said: “It is true that a court of equity does not ordinarily interpose to enforce a specific performance of a contract respecting personal property, unless an adequate remedy at law cannot be had; but it is otherwise where the equitable title is already in the plaintiff, but the legal title in another.”
    In Kimball v. Morton, 5 N. J. Eq. 26, stock in a bank had been transferred to the defendant, to be by him transferred in different portions, one portion of which was to be transferred to the complainants. Upon bill filed to enforce this trust, a transfer was decreed.
    In Cowles v. Whitman, 10 Conn. 121, it was agreed between A and B that A should subscribe, in the name of B, for five shares of the capital stock of a new bank about to be distributed, and that all the shares allowed on such subscription beyond what B could pay for, should be paid for by and belong to A; accordingly, A subscribed for five shares, in B’s name, which were allowed, the first installment being paid by A from his own funds; B then declared her inability to pay for any of such shares, and A paid the subsequent installments. On a bill in equity brought by A against the administrator of B for a transfer of these shares, it was held that a trust was created, and that the bill was sustainable, Daggett, Ch. J., said: “It is contended that a bill will not lie for the specific execution of a contract relating to personal chattels merely, because there is adequate remedy at law. ... I discern here no sale of this stock, nor any contract or agreement to transfer it. None of the cases cited, therefore, apply. On the contrary, I perceive a trust created, within the principles always applicable to this subject. Money is here paid, by these plaintiffs, for stock; and this stock, by her direction, stands in her name. They are the owners in equity; she is the owner at law. They now seek an execution of this trust; and this, by all the rules relating to trusts, comes within the peculiar province of a court of equity.”
    See also Williamson v. Krohn, 66 Fed. Repr. 655; Goodwin Gas Store & Meter Co.’s App., 117 Pa. 514; Wood v. Rowcliffe, 3 Hare, 304.
    In 3 Page on Contracts, 2471 (sec. 1630), it is said: “Circumstances apart from the nature of the stock contracted for may make specific performance proper. Thus, if the party who agrees to transfer the stock holds it in trust for the party to whom he agrees to transfer it, as where the transferee has furnished the money with which the transferer bought the stock, or where the transferee originally transferred the stock to the transferer gratuitously under his agreement to reconvey on demand, or where the stock was originally acquired by the transferer under a contract to transfer it to the transferee on the payment by him of the amount agreed upon, specific performance will be granted, even apart from considerations of the difficulty of estimating damages or of obtaining the stock. The transaction gives to the transferee an equitable interest which equity will protect.”
    The respondent argues also that the statute of limitations bars the plaintiff’s claim.
    The .statute of limitations has no application. Even were there no trust, it has been established by the evidence that the defendant did not hold adversely to the decedent. She did not set up any adverse title until after her mother’s death, only two years ago. On the contrary, the services to be rendered by the defendant, and which required her possession of the property, were not completed until the mother died, as during her life the parties contemplated continuous holdings, sales, etc., as the mother should direct. Where property is depositéd for safe custody, a right of action does not accrue until demand is made therefor: Tidd v. Overell, L. R. (1893), 3 Ch. D. 154. So suit cannot be maintained for deposits of money with a banker without a previous demand. Until then the bank is in no default. Hence the statute of limitations does not protect the bank until six years have run since the demand was made: Trickett on Limitations in Pennsylvania, sec. 224; Girard Bank v. Bank of Penn Township, 39 Pa. 92; Finkbone’s Appeal, 86 Pa. 368. Thus even under the principles enforced at law, the statute of limitations could not apply in the present case.
    The position, however, of the respondent was that of a trustee under a continuous trust, and for that reason also the statute of limitations could not apply. The respondent did not act, adversely or otherwise, to terminate thé trust relation as to the twenty-four shares under consideration, until her mother died.
    The general rule is that the statute of limitations does not run between the trustee and the cestui que trust so long as the trust subsists, for the possession of the trustee is the possession of the cestui que trust. Before the statute can begin to run in favor of the trustee, the trust must terminate, either through the limitations assigned upon its creation, or by the acts of the parties; or else by a repudiation of the trust by the trustee and his assertion of an adverse claim. This is put concisely by Pothier. He says: “Where a man deposits money in the hands of another, to be kept for his use, the possession of the custodee ought to be deemed the possession of the owner, until application and refusal, or other denial of the right; for, until then, there is nothing adverse, and I conceive that upon principle, no action should be allowed in these cases, without a previous demand; consequently, that no limitation should be computed further back than such demand:” 2 Pothier on Contracts, by Evans, 126.
    The cases cited by the counsel for the respondent are not opposed to this conclusion.
    In Downey v. Garard, 24 Pa. 52, it was the duty of the attorney to deliver the stock to his client, and his holding was adverse from the beginning.
    In Lyon v. Marclay, 1 Watts, 271, property was delivered for the use of an illegitimate child, and action could have been brought either at law or in equity. See page 275.
    In Zacharias v. Zacharias, 23 Pa. 452, the court held that the defendant was liable to action from the moment he received the plaintiffs money; which was certainly not the case here, where the very purpose of the trust was that the defendant should hold the property until the mother directed otherwise.
    So in Commonwealth Title Ins., etc., Co. v. Folz, 23 Pa. Superior Ct. 558, the property was delivered for a specific purpose which could not be fulfilled, and the defendant was liable to action at once.
    Counsel will submit a form of decree in accordance with this opinion — that complainant, administrator aforesaid, is the equitable owner and entitled to the said twenty-four shares of stock of the Pennsylvania Railroad Company.
    The decree in favor of complainant will include a requirement of the giving of additional security by the complainant as administrator before receiving the twenty-four shares of stock.

      Error assigned was the decree filed in accordance with the opinion.

      William H. Peace, for appellant.
    A trust should never be presumed without clear proof: Cook v. Fountain, 3 Swanston’s Ch. Rep. 585; Young v. Young, 80 N. Y. 422.
    If this were a resulting trust the remedy is not exclusively cognizable in equity, but an action would lie for damages, the value of the stock; and if the stock had at any time and all the time a fixed value daily ascertainable, then there is an adequate remedy at law: Roland v. Bank, 135 Pa. 598; Edelman v. Latshaw, 159 Pa. 644; Rigg v. Ry. Co., 191 Pa. 298; Smaltz’s App., 99 Pa. 310.
    February 26, 1909:
    A trust to bar the statute must be such as is peculiarly and exclusively cognizable in equity, namely, those technical and continuing trusts which are not cognizable at law, but fall within the proper, peculiar and exclusive jurisdiction of a court of equity: Kane v. Bloodgood, 7 Johns. Ch. 90; Finney v. Cochran, 1 W. & S. 112; Lyon v. Marclay, 1 Watts, 271.
    Here the facts would certainly seem to indicate, if ever, a trust, to which the statute would not apply, but the court held otherwise: Zacharias v. Zacharias, 23 Pa. 452; Miller v. Fulton, 206 Pa. 595; Downey v. Garard, 24 Pa. 52.

      Clarence L. Mitchell, for appellee.
   Opinion by

Beaver, J.,

The plaintiff filed a bill in equity in the court below, claiming that the defendant held twenty-four shares of the capital stock of the Pennsylvania railroad in a certificate issued to her which belonged to the estate for which the plaintiff was administrator and which was purchased in the lifetime of the decedent by the defendant at the request of, and with money belonging to, the decedent; that the defendant had been requested “to transfer to him, as administrator of the estate of Eliza Smith, deceased, the remaining twenty-four shares of said stock belonging to the estate of said Eliza Smith,” alleging that the plaintiff had no adequate remedy at law, and praying, “1. That your orator, administrator as aforesaid, be decreed to be the equitable owner and entitled to the said twenty-four shares of stock of the Pennsylvania Railroad Company. 2. That the said defendant be required to assign to your orator, administrator as aforesaid, the said twenty-four shares of stock of the Pennsylvania Railroad Company. 3. That during the pendency of this action the defendant, her executors, administrators, agents, servants and employees be enjoined and restrained from, selling or disposing of, or parting or interfering with, the said twenty-four shares of stock of the Pennsylvania Railroad Company, until otherwise ordered and directed by this court.”

The defendant filed a demurrer, which was overruled, and answer made, denying the general averments of the bill.

The demurrer rested upon two general grounds: That the bill did not show ground for equitable relief and that the plaintiff had a complete legal remedy, and, second, that the statute of limitations barred the right of the plaintiff to claim the stock alleged to belong to the estate of the decedent. We think the demurrer was properly overruled.

Testimony was taken before Judge Barratt of Court No. 2 of Philadelphia county. Two disinterested witnesses testified to a paper signed by the decedent which was dictated by one of the witnesses and reduced to writing by the other, which paper was alleged to have been reduced to writing and signed by the decedent at the request of the defendant, for the purpose of indicating clearly how much of the stock of the Pennsylvania Railroad held in the name of the defendant belonged to her and how much to her mother, the decedent. The paper was dictated and written down in the presence of the defendant and after-wards read to her, and the testimony showed that it was read to, and the facts therein asserted reaffirmed by, her, after it was written. The facts connected with the signing of this paper by the decedent were very carefully brought out in the examination of the plaintiff’s witnesses, the cross-examination of the defendant and a discriminating examination by the court. There was some contradiction of this testimony, but the court found that the declaration dated “Philadelphia, June 11th, 1898. I, Eliza Smith, do certify and declare under my hand and seal of this date in presence of witnesses that I am the owner of one hundred and twenty-four shares of Pennsylvania Railroad stock that is in the name of my daughter, Emma Smith, and the balance and the remainder is her own personal property bought and paid for by her in cash. I certify to this fact that it will avoid any mistake or dispute in the future, and it is subject at any time to be of less amount if necessity requires me to sell, and she is the absolute owner of forty-six shares at this date,” was, at the request of Emma Smith, dictated by Joseph K. Gamble to his wife, in the presence and hearing of Emma Smith and Eliza Smith. The signature was witnessed by two witnesses, the person who dictated the paper and the sister of the decedent, who was not examined because of her extreme illness at the time of the hearing. Upon cross-examination, the witness was asked: “ Q. Why didn’t you get Emma Smith to sign this paper, when you got Eliza to sign it?” and answered, “A. It was for the protection of Miss Emma Smith against her brother, and for that reason I had no idea it was necessary to have her name attached to it, because it was only she was afraid that after her mother’s death her brother would not think she had the number of shares she had, and I thought if it was drawn up showing how much she had and how much her mother had, it would stop any dispute in the family.” The testimony, as we read it, sustains the findings of fact of the court below, to which exceptions were taken in the court below, and the refusal of the court to sustain said exceptions constitutes many of the assignments of error here. The twenty-four shares referred to in the complainant’s bill having been purchased with the money of the decedent and being in the name of the defendant, as found by the court below,- justified and sustained the conclusions of law -that: “ Positive evidence, which there is no reason to question, shows that she (defendant) accepted a continuing trust in 1898 to hold the stock in question for her mother, to sell or to hold, as the mother should direct, and that she continued to hold twenty-four shares upon that trust until her mother’s death in 1906. '

“The defendant argues that equity has no jurisdiction in this case, because the bill seeks specific performance for an undertaking to deliver shares of stock and that, if a wrong has been done by refusal so to do, there can be compensation in damages, for which action must be brought at law: Edelman v. Latshaw, 159 Pa. 644; Roland v. Bank, 135 Pa. 598; Foll’s Appeal, 91 Pa. 434; Dungan v. Dohnert, 11 W. N. C. 330; 3 Parsons on Contracts, 364. The answer to that argument is that the present case is not one for the specific performance of a contract. It is a case of trust. Equity has jurisdiction in order to ascertain and vindicate the trust.” The court also held that the statute of limitations did not apply, saying: “Even were there no trust, it has been established by the evidence that the defendant did not hold adversely to the decedent. She did not set up any adverse title until after her mother’s death, only two years ago. On the contrary, the services to be rendered by the defendant, and which required her possession of the property, were not completed until the mother died, as during her life the parties contemplated continuous holdings, sales, etc., as the mother should direct.”

The findings of fact and the conclusions of law sustain the decree of the court, declaring that, “The estate of Eliza Smith, deceased, is the equitable owner of, and entitled to, twenty-four shares of the capital stock of the Pennsylvania Railroad Company, evidenced (together with forty-six other shares) by certificate No. 520,884 in the name of Miss Emma Smith, and now in the possession of the defendant, Emma Smith,” and “That the said defendant transfer and deliver to the said complainant the said twenty-four shares of stock upon the said Samuel P. Smith entering additional security as administrator of the estate of Eliza Smith, deceased, in the office of the register of wills, in the sum of $3,000, ” “ and the defendant pay the costs of these proceedings.”

The opinion of the court below in the conclusions of law arrived at is fully vindicated by the authorities which are cited and fully discussed. There is no necessity for requoting them here.

The defendant has thirty-six assignments of error, but the questions raised by them are those herein referred to and are satisfactorily disposed of by the opinion of Judge Barratt in the court below. For the reasons therein set forth, and herein very briefly referred to, none of the said assignments is sustained.

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