text:
    King v. Savage Brick Company, Appellant.

      Will — Devise—Rule in Shelley’s case — Remainder—“Children”—Appeals —-Quashing appeal.

    Testatrix by her will directed as follows: “Whatever other property I may have at the time of my death, whether real, personal or mixed, I give, devise and bequeath as follows, viz.: To my children if I any have at the time of my death. Should I die without issue then to my sister and my husband equally for life, or, in case of my said husband, until he shall marry again. In case of the death or remarriage of my said husband his share is to go to my said sister and in case of the death of my said sister her share is to go to my said husband. Upon the death of both, the whole to go to my brother, and upon his death to his children absolutely and in fee. If my said brother should die without children, then the whole to go to my cousins absolutely in fee,” naming them. Held, (1) that the word “children” in relation to the brother was a word of purchase and not a word of limitation; (2) that the devise to the brother was not an estate tail under the rule in Shelley’s case; (3) that the cousins took the estate in fee upon the remarriage of the husband and the death of both sister and brother without the latter leaving children.
    In an action of assumpsit brought by the cousins to recover rentals under a mining lease on the property devised as above, the administrator of the brother having written authority to act for the heirs of the brother may be made a party defendant, and if he participates in the case, and takes a joint appeal with the other defendant, the appeal will not be quashed.
    Argued March 12, 1906.
    Appeal, No. 76, April T., 1906, by defendant, from judgment of G. P. Somerset Co., Feb. T., 1904, No. 91, on case tried by the court without a jury in suit of Elizabeth Lawrence King and Alexander King, Jr. Devisees of Georgia Edith Manning, deceased, by Alexander King, their father and next friend, v. The Savage Fire Brick Company and Frank Fletcher, Administrator of Charles C. Reamer, deceased.
    Before Rice, P. J., Porter, Morrison, Henderson, Orlady, Beaver, and Head, JJ.
    Affirmed.
    Assumpsit for rentals.
    The case was tried without a jury under the act of April 22, 1874, by Kooser, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for plaintiff.

      J. H. Longenecker, with him Frank E. Colvin and Moses A. Points, for appellants.
    — The rule in Shelley’s case applies: Pott’s App., 30 Pa. 168; Brinton v. Martin, 197 Pa. 615; Simpson v. Reed, 205 Pa. 53; Pifer v. Locke, 205 Pa. 616; Boyd v. Weber, 193 Pa. 651; Sheeley v. Neidhammer, 182 Pa. 163; Mason v. Ammon, 117 Pa. 127; Blair v. Miller, 30 W. N. C. 486; Allen v. Markle, 36 Pa. 117; Guthrie’s App., 37 Pa. 9.
    We submit that the words “if my brother should die without children, then,” over, import an indefinite failure of issue: Eichelberger v. Barnitz, 9 Watts, 447; Hackney v. Tracy, 137 Pa. 53; Graham v. Abbott, 208 Pa. 68; Corrin v. Elliott, 23 Pa. Superior Ct. 449; Beilstein v. Beilstein, 194 Pa. 152; Buzby’s App., 61 Pa. 111; Coggins’s App., 124 Pa. 10; Rewalt v. Ulrich, 23 Pa. 388; Hogg’s Est., 27 Pa. Superior Ct. 428; McAlpin’s Est., 211 Pa. 26.

      April 23, 1906:

      Ernest O. Kooser and Alexander King, with, them Koontz Ogle, for appellee.
    — Plaintiffs took a fee: Mulliken v. Earnshaw, 209 Pa; 226; Stoner v. Wunderlich, 198 Pa. 158; Simpson v. Reed, 205 Pa. 53; Graham v. Abbott, 208 Pa. 68; Vilsack’s Est., 207 Pa. 611; Fowler’s App., 125 Pa. 388; Guthrie’s App., 37 Pa. 9; Keim’s App., 125 Pa. 480; Cote v. Von Bonnhorst, 41 Pa. 243; Curtis v. Longstreth, 44 Pa. 297; Crawford v. Forest Oil Co., 208 Pa. 5; Coursey v. Davis, 46 Pa. 25; Affolter v. May, 115 Pa. 54; O’Rourke v. Sherwin, 156 Pa. 285; Robins v. Quinliven, 79 Pa. 333; Cameron v. Coy, 165 Pa. 290; Steinmetz’s Est., 194 Pa. 611.
    A limitation over by will to survivors or persons in being after the death of the first taker, raises a strong presumption that testator did not contemplate an indefinite failure of issue: Steinmetz’s Estate, 194 Pa. 611; Johnson v. Currin, 10 Pa. 498; Mifflin v. Neal, 6 S. & R. 460.
   Opinion by

Head, J.,

The motion made at bar to quash this appeal cannot be allowed. The defendant Fletcher became a party to the record by the compulsory process of the court below without objection or exception by plaintiffs. He thereafter joined in the several agreements made by the parties to expedite a trial on the merits and finally obtained and, as we understand it, filed a paper fully empowering him to act for and represent the heirs at law of Charles C. Reamer, deceased. No harm has resulted or can result to the plaintiffs. The motion is therefore denied.

Georgia Edith Manning (née Reamer) was the owner of the undivided one-fifth of the tract of land from which came the rent or royalty constituting the fund now in controversjn She died in 1893, having first made her will. At the time of its execution in 1892 she was about twenty-four years of age and had been married for about two years. She left to survive her a husband, Yan H. Manning, but no children; three sisters, Etta, Ida and Mary (a lunatic), and one brother, Charles C. Reamer. After having devised in fee to her brother Charles a separate tract of land, and given to her sister Ida certain moneys, she further provided in her will as follows :

“ Whatever other property I may have at the time of my death, whether real, personal or mixed, I give, devise and be.queatli as follows, viz : To my children if aiiy I have at the time of my death. Should I die without issue then to my sister, Etta N. Reamer, and my husband, Van H. Manning, equally for life, or, in case of my said husband, until he shall marry again. In case of the death or remarriage of my said husband his share is to go to my said sister and in case of the death of my said sister her share is to go to my said husband. Upon the death of both, the whole to go to my brother Charles C. Reamer and upon his death to his children absolutely and in fee. If my said brother should die without children, then the whole to go to my cousins, Alexander King, Jr., and Lizzie Lawrence King, absolutely and in fee.”

The testatrix died childless. Her surviving husband remarried and thus lost his entire interest under the will, as was held by the Supreme Court in Fletcher v. Hoblitzell, 209 Pa. 337. Her sister Etta died and her brother Charles C. Reamer later died childless.

The present plaintiffs claim to be the owners in fee of the undivided one-fifth of ■ the land of which testatrix died seized, under the last clause of the will cited. The appellants, construing the will as having given to Charles C. Reamer a fee tail, enlarged into á fee simple by the act of assembly, contend that the devise over, after his death, was nugatory and that plaintiffs took nothing thereby.

In attempting to apply to a case in hand some of the many technical rules of construction formulated by courts to define certain words and phrases frequently used in wills, we are sometimes led to minimize the force of that primary and paramount rule which overrides all others ; which is universal in its application and in aid of which only may the others referred to properly be applied. Mr. Justice Mestkezat in Stoner v. Wunderlich, 198 Pa. 158, tersely states this cardinal rule thus : “ Our first duty is to ascertain the intention of the testator which must be carried out, unless in so doing it contravenes some established rule of law.”

Speaking of one of the technical rules or canons of construetion already referred to, Chief Justice Mitchell in Mulliken v. Earnshaw, 209 Pa. 226, says: “ Like all artificial rules it had the constant tendency to become an arbitrary fetter instead of a mere instrument for the ascertainment of the testator’s intent. The policy of the later cases in this state, if not everywhere, is to get back to the true rule of looking only to the actual intent. There is no sound reason in the nature of things why the actual meaning of the person using the words should not be sought in the case of a will exactly as it is in the case of a contract.....‘Every will,’ said Chief Justice Shabswood in Fox’s Appeal, 99 Pa. 382, ‘ must be construed from its “four corners” to arrive at the true intention of the testator. Decisions upon other wills may assist but cannot control the construction.” ’

Passing by, then, all subordinate and arbitrary rules of construction, at least until the necessity for their use becomes apparent, and keeping steadily in view the fundamental principle by which we are to be controlled, we turn to an examination of the entire section of the will already quoted. If from such examination we can ascertain with reasonable certainty a general intention, dominating the mind of the testatrix and guiding and directing the disposition of her estate, from the primary-devise to her own children, if any, to the final one in favor of the appellees, through the several contingencies contemplated and mentioned by her, then it only remains for this court to effectuate and enforce such intention.

As the testatrix made no effort to control the disposition of her property beyond the devise to the two appellees we may fairly assume that her expectation was that if the estate came to them at all, it would come during the period of their natural lives. As they were living when the will was made in 1892, and are still minors sueing by their next friend, they must have been quite young at the date of the will. That they would outlive the several devisees named before them, save only the children of Charles C. Reamer, if any, was therefore no improbable expectation on the part of the testatrix. But as they could take only after the happening of the several contingencies specified, it would seem to follow that, at least in the contem-plation of the testatrix, all of the contingencies, if they happened at all, would happen likewise within the period of the natural lifetime of the two ultimate devisees, then in full life. It cannot therefore be convincingly argued, if we are to ascertain the intention of the testatrix from the “four corners’” of her will, that we are forced to the conclusion that she predicated the estate she desired to give to the appellees on any contingency which, as she viewed it, would not happen, if it happened at all, within a fixed and definite period.

Talcing up, then, and examining more closely the several provisions of the will we may safely say that the first objects of the bounty of the testatrix were her own children, if any she left to survive her. They would have taken her entire estate in fee and the remaining portions of the will would have been inoperative. With her death, childless, the one barrier to the operation of the next clause was removed and the life estates to the husband and sister came into possession. By the remarriage of the former and the death of the latter the devise to Charles C. Reamer became effective: Fletcher v. Hoblitzell, 209 Pa. 337.

“ Upon the death of both (the life tenants) the whole to go to my brother Charles C. Reamer and upon his death to his children absolutely and in fee. If my said brother should die without children ” then over. It is earnestly contended in the elaborate and scholarly brief submitted by the learned counsel for the appellants that Charles, by this devise, took an estate in fee tail which, by operation of the act of 1855, became a fee simple. The essence of the argument may be stated thus: The testatrix in the first part of the entire section of her will hereinbefore first quoted, used the terms “ children ” and “ issue ” interconvertibly. Therefore the latter should be substituted for the former wherever the word “ children ” occurs. Prima facie the word “ issue ” means “ heirs of the body.” We would then have a devise to Charles and the heirs of his body which, under the rule in Shelley’s case, would vest in him an estate tail which our act enlarges into a fee simple. We thus have a devise to Charles which as just shown was a fee, with a devise over to the appellees predicated on his dying without issue, or in other words on “ an indefinite failure of issue ” of the first taker, which again would vest a fee tail in Charles under the rule laid down in Eichelberger v. Barnitz, 9 Watts, 447, and the long line of cases following it. That rule is thus stated by Mr. Justice Sergeant : “ If a devise be made to one in fee, and if he die without issue, or on failure of issue, or for want of issue, or without leaving issue, then over to another in fee, the estate of the first taker is a fee tail, .... and any devise over after the failure of such, must of course be after an indefinite failure of issue, and bad as an executory devise.”

Thus by the simple but ingenious contrivance of substituí-, ing the word “ issue ” for the word “ children ” in the devise we can use the rule in Shelley’s case to get rid of the express devise to the children of Charles, and by the application of the doctrine of Eichelberger v. Barnitz we render invalid and void the devise over to the appellees on the death of Charles without children. This looks more like a reconstruction of the will than a construction of its language.

Taking the language actually used by the testatrix, however, it is clear that the rule in Shelley’s case cannot be applied to the devise to Charles because the remainder is not limited directly or indirectly to his heirs, either in fee or in tail, but is vested in a particular class designated by an apt word of purchase, viz: “ children.”

That the word “ children ” is a word of purchase and is always so regarded, unless it plainly appears, from the context or the will generally, that the testator intended to use it in the sense of “issue,” as standing for the “ whole line of direct succession,” is abundantly established by the authorities, some of which will be cited later.

Nor can the rule of Eichelberger v. Barnitz be properly applied to assist in the 'construction of the clause now under consideration for several reasons, and primarily because there is no devise in fee in the first instance to Charles. To attempt to use a rule of construction to create an estate in fee whén the rule itself requires, as the primary^ condition of its existence, that a fee has been given to the first taker, is a clear case of arguing in a circle. Had the devising clause stopped with the name of"the brother there would have been a good devise to him in fee. If there had followed a devise over to the appellees “ upon his death without issue,” and the will had fixed no period within which the death without issue should occur, then we would have the conditions calling for the application of the rule invoked. But here we have an express devise to the children of Charles upon or after his death, if such children should survive him. They would have taken the estate just as certainly as would the children of the testatrix herself under the earlier clause, had she left any. And they would have taken, not through or under Charles in any way, but directly from the testatrix, just as he himself took on the termination of the previous life estates.

In Crawford v. Forest Oil Co., 208 Pa. 5, the language of the will of William Crawford was, “ and I will and devise to my son Matthew and his children, my old farm,” etc. Mr. Justice Brown construing this devise says : “ The word ‘ children ’ is a word of purchase and not of limitation, and describes the persons who take. . . . The rule as laid down by Lord Hardwicks in Buffar v. Bradford, 2 Atk. 220, is, that ‘ children, in their natural import, are words of purchase, and not of limitation, unless it is to comply with the intention of a testator, where the words cannot take effect in any other way.’ .... If the children of Matthew took directly from their grandfather, what was the estate given to their father and what passed to them ? ” After reviewing the authorities it was held that under the devise quoted the father, Matthew, took a life estate, his children taking the fee in remainder. Much more clearly does the present will declare the intention of the testatrix to give to her brother Charles but a life estate with remainder in fee to his children, if any, and failing such children then to the appellees.

But even if we regard the estate given primarily to Charles as a fee and not a life estate, still the rule contended for could not apply because the limitation over was not on failure of issue of the first taker, but of children only. In Hill v. Hill. 74 Pa. 173, after stating the rule that a devise in fee with a limitation over upon the death of the first taker, leaving no issue, reduces the estate in fee to an estate tail, Mr. Justice Sharswood says: “ On the other hand, it is equally clear that if there is anything in the will which indicates an intention of the testator that this word ‘ issue ’ shall not mean ‘ issue definitely ’ but ‘ children,’ then this construction does not apply;” Stoner v. Wunderlich, supra. Much more clearly again may we say that the rule cannot apply where the testator expressly predicates the devise over upon the failure of “ children ” of the first taker, and does not use the word “ issue ” at all. Moreover, as we have already seen, the will itself fixes a definite period of time within which the death of Charles C. Reamer “ without children ” should occur, viz : within the lifetime of the two ultimate devisees, and for this reason again the limitation over was not predicated on an indefinite failure of issue. All such cases were said in Eichelberger v. Barnitz to be well-recognized exceptions to the general rule there laid down : Smith on Executory Interests, 584. We can discover nothing in this devise to distinguish it in principle from that construed in Curtis et al. v. Longstreth, 44 Pa. 297, where it was held that a devise to Malcolm “ for and during his natural life .... and after his decease the same to go to his children; but should he die without issue ” then over, gave to Malcolm but a life estate. The language of Mr. Justice Sthong would seem to fit the case in hand exactly: “ It is plain that the testator intended that the remaindermen (the children) should take as purchasers, and not as heirs, unless a contrary intent is deducible from the last clause of the words of the gift. He described them by an apt word of purchase, i. e., children, and therefore the first taker had only an estate for life. Had there been no gift of a remainder to children, the limitation over on the death without issue would have given him an estate tail by implication, but there having been an intermediate gift of a remainder to children of the devisee of the particular estate, the gift over on the death without issue must be construed as a gift on death without such issue as those previously mentioned, to wit: children.”

Inasmuch, then, as neither the rule in Shelley’s case, nor that declared in Eichelberger v. Barnitz, can be invoked to enlarge the estate given to Charles C. Reamer to a fee, it follows that he took but a life estate, and we so hold. Many other pertinent authorities are cited in the exhaustive opinion of the learned court below which so ably vindicates the judgment entered, but we can see no advantage in further elaborating our conclusion. As Charles C. Reamer took but a life estate, neither his administrator nor -his heirs at law can have any interest in the fund in court which has accumulated wholly since his death, and the right of the plaintiffs to recover would be complete.

Judgment affirmed.


source: Caselaw Access Project

author: Morrison, J.,

license: Public Domain

text:
    Russell v. Howe, Appellant.
    April 23, 1906:

      Mines — Iron ore — Title—Lease—Stoppage in transitu.

    Where iron ore is mined under a lease, the title to it vests absolutely as personal property in the lessee as soon as it is mined and removed from its original place, and it is immaterial as affecting the title that the lease was subsequently forfeited.
    Where iron ore is mined under a lease, and hauled to a wharf half a mile away on the lessor’s land where it was permitted to be stored under some arrangement between the lessor and the lessee, a purchaser of the land fifteen years thereafter cannot set up the right of stoppage in transitu as a ground for seizing the ore.
    Argued March 14, 1906.
    Appeal, No. 23, March T., 1906, by defendants, from decree of C. P. Juniata Co., April T., 1904, No. 1, on bill in equity in case of George L. Russell v. Dr. Herbert M. Howe, Prank P. Howe, John Markle and Donald F. Bush, .trading as the Rockhill Furnace Company.
    Before Rice, P. J., Porter, Morrison, Henderson, Orlady, Beayer and Head, JJ.
    Reversed.
    Bill in equity for an injunction and an account.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree in favor of the plaintiff.

      L. E. Atkinson, of Atkinson & Pennell, for appellants.
    — The ore was personal property: Green v. Ashland Iron Co., 62 Pa. 97; Coal Co. v. R. R. Co., 187 Pa. 145; Lykens Valley Coal Co. v. Dock, 62 Pa. 232.
    The license to use the land of another may be inferred from circumstances: Meigs’s App., 62 Pa. 28; Pierce v. Cleland, 133 Pa. 189; Baldwin v. Taylor, 166 Pa. 507.

      W. W. Uttley and J. Howard Neely, with them T. M. Uttley for appellee.
   Opinion by

Morrison, J.,

This is a bill in equity to restrain defendants from removing certain iron ore which had been mined and delivered at a wharf on the bank of the Pennsylvania canal, and for an accounting. The learned court having entered a final decree in favor of the plaintiff for the sum of $1,075 and costs, the defendants appealed.

A careful examination of the record fails to disclose to us any ground whatever to sustain equitable jurisdiction in this case, except the giving of a bond by the defendants and a stipulation that the case should be tried on its merits in equity. As we understand the facts, the dispute between these parties ought to have been tried and determined in an action of trespass, since the procedure act of 1887. Prior to the passage of that act, the cause of action could have been tried and determined in a suit in trover and conversion. But in view of the stipulation, made after the suit was begun, that it should be tried on its merits in equity, we will not dismiss the bill on that ground. However, we will not be únderstood as deciding that parties can give a court of equity jurisdiction of a simple trespass case by stipulation filed.

We find in this recqrd, on the part of the plaintiff, eighteen requests for findings of fact and fifteen for conclusions of law; on the part of the defendants there are fifteen requests for findings of fact and eleven for conclusions of law, and the learned court’s discussion, findings of fact and law, and opinion, occupies twelve printed pages. We also find eighteen assignments of error. The view we take of this case is that it can be disposed of, on its conceded facts, by a few well settled rules of law and we will thus be relieved from discussing the assignments of error in detail.

1. On April 23, 1873, William R. Graham granted an ore lease or license, in writing, to the Glamorgan Iron Company, giving to it the right to mine and remove all the iron ore found or to be discovered on the grantors’ tract of land in Juniata county, bounded on the south by the Pennsylvania canal, containing 335 acres. This lease stipulated for a certain price per ton for the ore and bound the party of the second part to take out 5,000 tons annually, and fixed the price per ton to be paid for the ore, payment to be made on or about the 15th of every month for all ore mined or hauled over the scales the previous month. In pursuance of this contract the Glamorgan Iron Company developed five mines on the premises and shipped large quantities of iron ore in canal boats to its furnaces in Lewistown. When shipments of iron ore were first made, it was hauled on wagons from the mines, placed on the berm bank of the canal and from there loaded onto the canal boats. Afterwards the Glamorgan Iron Company constructed a large wharf, located along the canal, partly on the land of William R. Graham and partly on the land of the canal company. In the construction of this so-called “ big wharf ” the iron company excavated large quantities of earth, and placed cribbing along the canal and sills for the bottom of the wharf, and upon these placed boards and plank, thus constructing a valuable wharf or place for storing its ore. It is conceded that the construction was expensive and cost a considerable sum of money.

This wharf was used for the storage and shipment of iron ore by the Glamorgan Iron Company, until the flood of June, ■1889, known as the “Johnstown Flood,” destroyed the canal and rendered the shipment of ore thereby impossible. At this time, there was lying on the wharf about 5,000 tons of iron ore, which had been mined by the Glamorgan Iron Company on the Graham tract, under the contract above mentioned, hauled by their teams about half a mile from the mines, weighed and placed on the wharf.

The defendants contend that this iron ore contained a low percentage of iron and that for many years after the destruction of the canal, it was not saleable.

2. On December 11, 1889, the Glamorgan Iron Company made an assignment of all its property for the benefit of creditors to Charles Gilpin, Jr., who accepted the trust and subsequently sold the ore in question to A. Pardee & Company. And about January, 1904, Pardee & Company sold this iron ore to the Rock Hill Furnace Company, the present defendants.

3. The ore lease or license between Graham and the Glamorgan Iron Company above referred to, does not refer to or have any connection with the wharf location on the bank of the canal.

4. On February 27, 1877, after the execution of the ore lease and the construction of the wharf, William R. Graham mortgaged the land upon which the mines were opened and the wharf built, to William Russell, who foreclosed his mortgage, sold the land on a levari facias, bought it at sheriff’s sale and received a deed therefor, which was acknowledged in 1884. Mining was continued by the Glamorgan Iron Company after the sale and under the original contract, except the royalty for mined ore was reduced to twenty-five cents a ton.

5. Afterwards, George L. Russell, the plaintiff, and D. W. Woods, executors of William Russell, deceased, conveyed the land to Frank M. Sterrett, by deed dated September 30, 1897, and on the same day Sterrett conveyed the land to George L. Russell, plaintiff.

6. About February, 1904, the Rock Hill Furnace Company, defendants, began the removal of the iron ore from said wharf, over a narrow gauge railroad which was laid along the tow path of the canal, and from the cars had it carried in baskets on a wire cable across the Juniata river to the cars of the Pennsylania Railroad Company, and shipped to their furnace at Orbisonia.

7. While engaged in shipping the ore plaintiff gave the defendants notice to desist, because he claimed the ore as his own, and the notice having been disregarded, he then obtained a preliminary injunction to restrain them and this injunction was afterwards made permanent. D efendants then gave bond to pay all damages that might be recovered against them, including a stipulation that the case should be tried on its merits in equity, and removed the remainder of the ore.

Our first proposition of law is that the iron ore, mined upon the Graham land and removed to the wharf by the Glamorgan Iron Company, under its contract with Graham, became the personal property of the company and its title to the same was absolute, and this, whether the ore was paid for or not, because the company had the right to mine and remove the ore and ship it and pay for it on or about the fifteenth of the next month. It is not necessary to cite authorities that the sale and delivery of personal property on credit vests as good a title in the purchaser as if he paid cash on delivery.

In Green v. Ashland Iron Co., 62 Pa. 97 the plaintiffs had a mining lease, and raised ore, which, being unwashed, was mixed with the earth, leaving it on the bank of the premises. Heldthat replevin would lie for its possession unwashed, notwithstanding the adhesion of the earth. In that ease Mr. Justice Agnew said (p. 102) : “ The true question, therefore, was upon the title of the plaintiffs to the ore as a chattel, and not upon the title to the mines from which it had been severed. Under these circumstances we perceive no error in holding that replevin would lie.”

In Lykens Valley Coal Co. v. Dock, 62 Pa. 232, the same learned judge held (p. 238): “ There was no error in the court charging that the mined coal was personal property, passing under the assignment for the benefit of creditors, and subject to be removed by the assignee.”

In Coal Co. v. Railroad Co., 187 Pa. 145, it is held as stated in the syllabus: “ Culm mined from its original place, and piled on the ground, is personal property.”

These and many other authorities which might be referred to, conclusively establish the proposition that the iron ore, on the wharf, in dispute in this case, was the personal property of the Glamorgan Iron Company. That the title passed by the general assignment of the Glamorgan Iron Company and the sale by its assignee, to Pardee & Company, and from Pardee & Company to the defendants, is, in our opinion, perfectly clear.

But the plaintiff sets up a theory that because he became the owner of the William R. Graham land, out of which this ore was mined, he, in some way, not very clear to us, became the owner of the ore in question. There is not a scintilla of evidence that anybody ever undertook to transfer the title to this personal property to the plaintiff. Much stress seems to be placed, by the plaintiff, upon the proposition that the ore lease or license between Graham and the Glamorgan Iron Company was forfeited, because operations under it were suspended for many years. Let this be conceded and we are unable to see how it vests title to the ore in the plaintiff. It is very clear that the wharf was constructed under some license or arrangement independent óf the ore lease, because there is not one word in this lease in regard to the wharf or the place of delivery of the ore upon the canal bank.

It seems to us that under the circumstances in this case, a court of equity ought to presume that the wharf right was held under a parol lease and that it was irrevocable, until the defendants had a reasonable opportunity to remove their personal property therefrom. Upon this question see Baldwin v. Taylor et al., 166 Pa. 507; Hopkins v. Stoneroad, 21 Pa. Superior Ct. 168; Huff v. McCauley, 53 Pa. 206; Rerick v. Kern, 14 S. & R. 267, and Harris v. Brown, 202 Pa. 16.

In Meigs’s Appeal, 62 Pa. 28, it is held as stated in the syllabus : “ A license to use the land of another temporarily may be inferred from "circumstanees. A permanent right to the use of structures built on the land of another, with his assent, may be acquired by the expenditure of money and labor. A court of equity does not enforce penalties and forfeitures.”

We . do not think there is a scintilla of evidence in this record showing title to the oró in dispute in the plaintiff, the purchaser of •this land at sheriff’s sale, out of which the ore was lawfully mined and removed. Moreover, there is evidence in the record from which a court of equity could find that the plaintiff was estopped from claiming title to this ore because of his disclaimer of title to it on inquiry made by a representative of the defendants, to whom he said it was owned by John R. Fell in Philadelphia, and it appears that he represented Pardee & Company. But it is unnecessary to rest a decision of this question upon estoppel, because it is impossible for us to see when, where and how the title to this ore, stored on the wharf, ever slipped away from the Glamorgan Iron Company and those claiming title under it, and vested in the plaintiff.

The learned counsel for the plaintiff and the learned court below seemed to have appreciated the fact that the pinch of the case was to get the title to the ore, stored on the wharf, into the plaintiff. On this question the learned counsel elaborately argue that a forfeiture of the ore lease of April 23, .1873, worked a forfeiture of the wharf, and the ore stored thereon, and somehow vested the title to the ore in the purchaser of the Graham farm, at sheriff’s sale, long after the ore was mined and delivered on the Glamorgan company’s'wharf, while the ore lease was in full force. Under the terms of the ore lease and the undisputed facts in this case, we cannot see that the forfeiture of the lease in any way affected the Glamorgan Iron'Company’s rights in the wharf or their title to the ore thereon. The learned court, and the counsel for the plaintiff,

also set up the right of stoppage in transitu as a ground on which the plaintiff can hold the ore. But this ore was sold, named and delivered to the Glamorgan Iron Company,- and placed by the company on its wharf, under its entire controlj many years before the present plaintiff had any interest in the Graham farm. In addition, the Glamorgan Company never purchased the ore from the plaintiff and did not owe him anything for it, and to hold that he has any right of stoppage in transitu seems to us in the teeth of all the decisions upon that subject. Title to the ore, under the lease, absolutely vested in the Glamorgan Iron Company as soon as it was mined and when it was hauled by the teams of that company a half a mile, and stored on the company’s own wharf, we cannot understand why it is argued that the plaintiff, about fifteen years thereafter, can resort to the doctrine of stoppage in transitu. On this subject see Diehl v. McCormick, 143 Pa. 584.

The learned court below further takes the following position : “ But this would not prevent the purchaser from acquiring title to the ore, hay and grain when growing upon the lands are realty, when severed they become personalty; fences erected upon land, shingles upon the roofs of buildings are realty; and when torn down, the rails which constituted the fence, and shingles which comprised the roof, partake of the nature of personalty, and, if left upon the premises, when title and possession of the realty passes to a purchaser, unless by reservation in the deed, or by other agreement at the time, title passes with the land; all of said property vests in the owner of the soil on which they are found. This rule, we think, is fairly applicable to the facts in the case at bar,” etc.

It seems that this illustration is far-fetched. Let us suppose a parallel case : If the owner of the farm had sold the rails in his fences and the shingles on his buildings and his hay and grain, authorizing the purchaser to tear down the fences, remove the shingles from the buildings and cut and harvest the hay and grain, and the purchaser had done all of this, and removed the rails, shingles, hay and grain to a storehouse of his own, of which he had the exclusive possession, we hardly think the learned court below, on reflection, would contend that on a subsequent sale of the farm, the title to the property removed, would pass with the realty, in the absence of a reservation. We think this question may be dismissed without a citation of authorities.

We find ourselves unable to sustain the decree of the learned court below and it is now ordered and decreed that the decree of the court below be and is reversed, and the injunction dissolved, and the bill dismissed, and the plaintiff, George L. Russell, pay the costs of suit and of this appeal.


author: Henderson, J.,

text:
    Dock v. Pratt, Appellant.

      Contract- — Breach—Damages—Board and lodging — Rent.
    Where a contract to pay $50.00 per month for three years, one-half thereof for board and lodging and the other half for rent, is abandoned shortly after it is made, by the party who was to make the payments, the other party may at once rescind and proceed to recover the damages for the whole term. In such a case the damages as to the board and lodging will be the difference between the contract price and the expenses, and as to the office the difference between the rent and the value of the office after the breach.
    Argued Nov. 21, 1905.
    Appeal, No. 7, Oct. T., 1905, by defendant, from judgment of G. P. Chester Co., Aug. T., 1904, No. 21, on verdict for plaintiff in case of Mary G. Dock v. John W. Pratt.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit for breach of contract. Before Hemphill, P. J.
    The court charged in part as follows:
    The plaintiff’s claim in this case is for board and for rent of offices for a period of three years, less four and one-half months, which has been paid. There are some facts here that are not in dispute. The first fact is that young Dr. Pratt went to the Dock house, occupied the offices of their deceased son from December 31, 1903, until May 12, 1904, that during that period he paid to Mrs. Dock, or through her husband to her, for the rental of those offices, at the rate of $25.00 per month, and for board during that period at the same price, $25.00 per month. Were those payments made, and the occupancy of those apartments enjoyed by young Dr. Pratt under a contract such as is alleged, and attempted to be established here by the plaintiff, namely, that he was to pay, or the defendant was to pay for his son, for a period of three years, $25.00 a month rental for the offices, and $25.00 a month board for the young man while he occupied them. The burden of satisfying you that his occupancy and his living there was under the terms of that contract, is upon the plaintiff. It is her duty to satisfy you by a preponderance of the evidence, that he failed to comply with the contract which she sets up here, and which she has attempted to establish to your satisfaction. Has she done so ? If she has, she is entitled tó a verdict. If she has failed then your verdict will simply be for the defendant. ****** * *
    Now, gentlemen, that, it seems to me, is the testimony in brief, and as you will see, the turning point in the ease is what took place on January 14, 1904. If a contract was then entered into, as testified to by Mr. Dock, then the plaintiff here is entitled to a verdict. If, however, his testimony has failed to satisfy you that there was such a contract made, and you credit the testimony on the other hand, of Dr. Pratt, the elder, and the younger, then your verdict should be for the defendant. If for the defendant, your verdict will simply be, “ For the defendant.” [If for the plaintiff, then the next question arises, what damages has the plaintiff suffered ? What is she entitled to recover in this suit, having established the contract to your satisfaction, for three years and on the terms that I have referred to and specified ? Four months and a half of tbe time has been paid for. There is no question about that. That would leave, as I figure it — although you will not take my figures — on the matter of rent — that would leave thirty-one and a half months still due — two years and seven and a half months, which would make thirty-one and one-half months, and at $25.00 would amount to $787.50, which would be the balance of rent due for three years, for which the contract was to run and has been unaccounted for. On the board, of course, there is an expenditure necessarily from day to day, week to week, and month to month, on the part of Mrs. Dock, the plaintiff. In other words, $25.00 per month does not represent her loss, but her loss would be the profit that there would be in it — in that $25.00 to her, which she and her husband both fix at about $3.00 per week.- Calculating a loss of $3.00 a week for thirty-one months and a half it would aggregate $378 if my calculations are correct, which, added to the $787.50, would make the total loss or damage, $1,165.50.]
    April 23, 1906:
    Verdict and judgment for plaintiff for $500. Defendant appealed..

      Error assigned was portion of charge in brackets, quoting it.

      J. Frank E. Hause, for appellant.

      Wm. M. Hayes, with him Joseph R. Embery and J. Carroll Hayes, for appellee.
   Opinion by

Henderson, J.,

Two courses of procedure were open to the plaintiff when the defendant, through his son, refused to further perform the contract set forth in the declaration. She might have proceeded in affirmation of the contract to collect the amount due thereon, or she could have elected to rescind the contract after the defendant’s repudiation of it and sue for the damage which she had sustained. She chose the latter course, and declared for damages for the breach of an entire contract which covered board, lodging and the use of an office at the rate of $50.00 a month for a period of three years. The only assignment of error relates to the instruction of the court on the measure of damages, which was in effect that the plaintiff was entitled to recover the whole amount due for the use of the rooms for the unexpired term. It appeared from the evidence that while the amount to be paid was $50.00 per month, that sum was made up by a charge of $25.00 for board and lodging and $25.00 for the use of the office. The plaintiff assumed the burden of showing what the loss was to her by reason of the withdrawal of the defendant’s son as a boarder and lodger, but offered no evidence upon the subject of the rent of the office. Damages are given as a compensation or satisfaction to the plaintiff for an injury received from the defendant, and must be the natural and proximate consequence of the act complained of. Where special damages are claimed they must not only be specified in the declaration but must be proved by evidence at the trial. There can be no doubt of' the plaintiff’s right to treat the contract as rescinded and to proceed for damages for the entire breach in- one action: 1 Sedgwick on Damages, sec. 57; Keck v. Bieber, 148 Pa. 645. In so doing the burden was upon her, however, of showing what loss she had sustained by the failure of the defendant to perform his contract. The damage resulting from the loss of her bargain is what she was entitled to. Competent evidence to show this was offered in regard to the board but omitted in regard to the other element entering into the contract. The action was brought when a small part of the whole term had expired. The rescission of the contract by the plaintiff put her in possession of the office, and she seeks at the same time to recover the full rental value for the whole term. It maybe that the premises were of no value to her and that this could be established by the testimony of witnesses, but there is no presumption that property of this character in the city of Philadelphia has no value. The jury was given to understand that the plaintiff’s loss was the whole amount agreed upon as the price of the office for the term, without reference to its value to the plaintiff after she rescinded the contract. The measure of damages as to the board would be the profit to the plaintiff after deducting the expense; and as to the office, the difference between the price agreed to be paid and the value of the rooms after the breach. Where one contracts for the occupancy of a building for a certain time for a rent agreed upon and abandons the premises before the term is completed, the measure of damages is the difference between the rent stipulated and the actual rental value for the balance of the term: 2 Gfreenleaf on Evidence, sec. 261; 8 Sutherland on Damages, sec. 844 and note. An exception to the general rule exists in the case of contracts for the hire of agents, laborers and domestic servants for a definite period, in which class of cases it has been held that if one is wrongfully discharged before the end of his term of service he is entitled to recover for the whole period, unless the defendant shows that the plaintiff was engaged in profitable service during the time sued for, or that he refused the offer of such service, the burden of proof resting upon the defendant upon "this subject. Without going into a discussion of the reason for the exception referred to, it is sufficient to say that it has not been extended to contracts of the character of that set forth in the plaintiff’s declaration, and the cases cited by the appellee in regard to damages for breach of contracts for service do not apply.

It may be, as suggested by the learned counsel for the appellee, that the jury was not influenced by the instruction of the court in that part of the charge’ excepted to, but we cannot say that a different conclusion would not have been reached if the measure of damages above indicated had been given to them. The intimation in the charge that the jury was not to be bound by the figures submitted by the learned judge, relates to the whole calculation made by him, and was evidently intended as a caution that they were to reach a result from their own computation. We are of the opinion that the burden was upon the plaintiff to show what her actual damage was, resulting from the loss of her contract for board and lodging and use of office, and as to the use of the office the measure of damages was the difference between the price to be paid and the value of the premises for the remainder of the term after the contract was rescinded by the plaintiff.

The assignment of error is therefore sustained and the judgment reversed with a venire facias de novo.


text:
    Gartsee v. Citizens Insurance Company, Appellant.

      Insurance — Fire insurance — Title to property.

    Where the owner of a building conveys it to another, and at the same time assigns a fire insurance policy to the grantee with the consent of the insurance company, the latter cannot after a fire allege as a defense to a suit on the policy, that the owner had, prior to the date of the policy, granted an equitable estate in the building to another, where the evidence is insufficient to defeat the grantee’s title to the land.

      Insurance — Fire insurance — Proofs of loss — Total loss.

    Formal proofs of loss are not necessary in the case of a total loss of a building insured, where the insurance company has been promptly notified of the loss and has inspected the premises.
    Argued March 7, 1906.
    Appeal, No. 15, March T., 1906, by defendant, from judgment of C. P. Clinton Co., May T., 1904, No. 118, on verdict for plaintiff in case of John Gartsee, now to use of Emma Cook, v. The Citizens Insurance Company of Missouri.
    April 23, 1906:
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison, Henderson and Head, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Mayer, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $691. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      C. S. McCormick, for
    appellant, cited on the subject of title : Siter, James & Co.’s App., 26 Pa. 180; Zerby v. Zerby, 9 Watts, 234; Bradley v. O’Donnell, 32 Pa. 279; Zeigler’s App., 69 Pa. 471; Thompson v. Carpenter, 4 Pa. 132; Woodward v. Tudor, 81* Pa. 382; Washabough v. Stauffer,. 81* Pa. 497; Millville Mut. Fire Ins. Co. v. Wilgus, 88 Pa. 107; Imperial Fire Ins. Co. v. Dunham, 117 Pa. 460.
    Cited as to proofs of loss: Dwelling House Ins. Co. v. Dowdall, 42 Northeastern Repr. 606; Trask v. Ins. Co., 29 Pa. 198; Welsh v. London Assurance Corporation, 151 Pa. 607; Western, etc., Pipe Lines v. Ins. Co., 145 Pa. 346.

      Greorge A. Brown, of Brown & Stevenson, for appellee, cited:
    Powell v. Ins. Co., 2 Pa. Superior Ct. 15; Carnes v. Ins. Co., 20 Pa. Superior Ct. 634; Caldwell v Fire Assn., 177 Pa. 492; Wachter v. Assurance Co., 132 Pa. 428; Highlands v. Fire Ins. Co., 177 Pa. 566; Kalmutz v. Ins. Co., 186 Pa. 571; Light v. Ins. Co., 169. Pa. 310; Davidson v. Assurance Co., 176 Pa. 525; Fire Ins. Co. v. Dougherty, 102 Pa. 568; Roe v. Dwelling House Ins. Co., 149 Pa. 94; Earley v. Fire Ins. Co., 178 Pa. 631; McCormick v. Ins. Co., 163 Pa. 184; Moyer v. Sun Ins. Office, 176 Pa. 579.
   Opinion by

Henderson, J.,

The appellant excepts to the action of the court in giving binding instructions for the plaintiff on two grounds: (1) Because the use plaintiff did not have such a title to the property as entitled her to recover; (2) because proof of loss was not made as required by the terms of the policy. Gartsee was the owner of the property at the time the insurance was taken out and on April 3, 1903, he conveyed it by deed to Emma Cook, to whom the policy of insurance was also assigned with notice to, and the approval of, the defendant company. A legal title was thus shown which imports an insurable interest and the plaintiff was entitled to recover in the absence of a valid defense. It is alleged, however, that an equitable estate in the same land was granted by Gartsee to one Nancy Wykoff on April 18, 1902, but this was not shown by evidence competent to affect the title of Emma Cook. The notice to the company of an equitable interest in Mrs. Wykoff was not in the line of the Cook title and could not alone prevent a recovery ; nor is the evidence of Mr. McCormick, who seems to have been the attorney for John Gartsee, sufficient, without more, to establish a trust in Emma Cook in favor of Mrs. Wykoff. No such outstanding interest is exhibited as would defeat the legal title of the plaintiff or show that any other person than she is in a situation to recover the amount due on the policy. The contract of insurance was fairly made with Gartsee and when he transferred his right thereunder to Emma Cook along with the title to. the land the defendant company gave its written consent to' the transaction and thereby continued the life of the policy.' This it clearly had a right to do and having thus renewed its obligation it cannot be released therefrom without competent and sufficient evidence that the title is held otherwise than appears from the conveyance to the use plaintiff. No other person is claiming the fund and no legal reason is presented the effect of which would be to defeat the plaintiff’s claim because she is not the unconditional and sole owner of the property.

The property insured was a single building which was totally destroyed. The evidence shows clearly that it was worth more than the amount named in the policy. Immediate notice of the loss was given to the company a.nd its adjuster came to the premises and examined the existing conditions: Pennsylvania Fire Ins. Co. v. Dougherty, 102 Pa. 568; Roe v. Insurance Co., 149 Pa. 94; Powell v. Insurance Co., 2 Pa. Superior Ct. 151, are authorities sustaining the ruling of the learned trial judge that formal proofs of loss are not necessary in the case of' the total loss of a building insured where the insurance company has been promptly notified of the loss and has inspected the premises. No allegation of fraud was made by the insuring company and on no principle of justice should the insured be deprived of the protection 'of its contract because she did not perform the vain act of making proof of that of which the company already had knowledge and confirmation of which had been received through the presence of its adjuster on the ground. None of the material facts were controverted and the court was not in error in instructing the jury to find a verdict for the plaintiff. It was well said in Wachter v. Assurance Co., 132 Pa. 428, that: “When the facts are admitted or established beyond all controversy as they are in this case there is no necessity for submission to the jury. It then becomes the province of the court to declare the law applicable to such facts.” The plaintiff made out a case which entitled her to a verdict.

The judgment is therefore affirmed.


text:
    Compton’s Estate.

      Orphans’ court — Findings of fact — Conclusiveness of.

    A finding by the orphans’ court on competent evidence that the signature of a decedent to a contract is genuine, will not be disturbed in the absence of manifest error.

      Contract — Support of father — Parent and child.

    An agreement between two sons that one of them will take their aged father into his family, and that the other will pay his share of the expenses of support and maintenance of the father, is a valid contract, although there may be other children who might under the poor laws be compelled to contribute to their father’s support, and although the amount to be paid was not fixed at any definite sum.
    Argued Jan. 12, 1906.
    Appeal, No. 39, Jan. T., 1906, by Clarence Watrouse, from decree of O. C. Lackawanna Co., distributing fund in Estate of Cornelius Compton, deceased.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison, Henderson and Head, JJ.
    Affirmed.

      Exceptions to adjudication.
    From the record it appeared that J. J. Compton and Cornelius Compton entered into the following contract in writing:
    “ June 26, 1897.
    “Agreement made between J. J. Compton and Cornelius Compton heirs and sons of Jehial Compton. I hereby agree to the appointment of J. J. Compton as administrator of our father’s estate to collect all money due from insurance and other sources and to pay all bills incurred at the time of his death, and I hereby agree to stand my share of the expense and caring for his support as long as he lives.
    “ J. J. Common, (L. S.)
    “ Cornelius Compton, (L. S.) ”
    In construing this contract Sando, J., said:
    The parties were brothers. One lived in Scranton and the other in Hallstead in another county. The one was single, having been divorced from his wife, and was not keeping a house of his own, but boarding; the other was housekeeping with his family; the father was seventy-seven years old, somewhat infirm and, ailing, and being without a home, or means of support, had recently gone to the home of his son in Hallstead.
    The sons were evidently providing for his support, and while the paper suggests that it was made at a time when his early death was contemplated there is-nothing in that to impair its effect. Taking into consideration its contents, the subject-matter, the relation and situation of the parties, the meaning to be collected from the paper is found to be that Jacob Compton was to support the father at his home during the balance of his life; Cornelius Compton was to share that expense equally with him, and such interest as he might have in the father’s life insurance was intended tobe transferred to Jacob Compton as security.
    The court entered a decree of awarding the sum of $624 to J. J. Compton.
    Clarence Watrous, guardian of a minor son of Cornelius Compton, appealed.

      Errors assigned was the decree of the court.

      April 23, 1906:

      C. A. Van Wormer with him John F. Scragg, for appellant.
    An appellate court does not hesitate to reverse a judgment entered upon a verdict based upon insufficient evidence; and the same is true of an auditor’s findings of fact: Fehl’s Estate, 13 Pa. Superior Ct. 601; Fague’s Est., 19 Pa. Superior Ct. 638; Coleman’s Est., 200 Pa. 42; Steele’s App., 72 Pa. 101.
    If the meaning of the contract is obscure, indefinite and doubtful, the contract will be declared void for uncertainty: Purves’s Estate, 196 Pa. 438.

      Clarence Balentine, with him Charles Connell, for appellee,
    cited: Bearmer’s App., 126 Pa. 77; Fehl’s Est., 13 Pa. Superior Ct. 601.
   Opinion by

Henderson, J.,

The principal question of fact presented for the consideration of the orphans’ court was whether the contract of June 26, 1897, under which the appellee claimed, was executed by Cornelius Compton. The allegation of the appellant was that the signature was a forgery. The evidence in support of this allegation consisted of the testimony of the divorced wife of the decedent as to the genuineness of the signature and the opinion of experts based upon a comparison of signatures. On behalf of the appellee the father of the decedent testified that the signature was that of Cornelius and that the latter had talked with him about the paper something over a year before. Expert testimony was also introduced, as were several exemplars of the handwriting of the decedent to be used for comparison with the impeached signature. The testimony is voluminous and it is unnecessary to discuss it at length. After what seem to have been a careful and impartial consideration .of the evidence the court reached the conclusion that it preponderated in favor of the genuineness of the signature. The burden is upon the appellant to show that a mistake was made in so doing, and the finding must stand until the error is clearly pointed out. There was competent evidence before the court on which the conclusioh could be based and we are not convinced that it was insufficient to support the finding. Objection was made to the admission of the evidence of Jehial Compton, but he was clearly competent. He was neither a party to the contract nor had'he a legal interest-with reference thereto adverse to the right of the deceased party. He did not have a right of action on the contract nor was it a matter of any concern to him, legally speaking, whether the claim arising therefrom was al-' lowed or not.

The appellant contends that even if the contract is genuine it is void for uncertainty in that it does not express what proportion of the expense to be incurred in maintaining his father was to be paid by the decedent. Taking into consideration' the situation and relation of the parties the agreement is not difficult of interpretation. There were two parties to the obligation. It is under seal and imports a consideration. The evidence also shows that the consideration contemplated in the agreement, namely, the support of their father, passed from the appellee to his brother, Cornelius. Jacob was married and had a home of his own. Cornelius was not keeping house. Their father was seventy-seven years of age and infirm in health and without any estate adequate to his support. In order that he might be properly cared for, it was agreed between Jacob and Cornelius that the former would take the father to his own home and properly provide for him and in consideration of that undertaking Cornelius bound himself “ to stand my share of the expense and caring for his support as long as he lives.” As the arrangement for the maintenance of their father was made by the parties to the contract and as there were but two parties to that contract there is but one interpretation of it which will stand the test of criticism and that the court put upon it. It was an agreement by Cornelius with Jacob that if the latter would keep their father, he (Cornelius) would pay his share of the expense, and that is one-half of the cost of maintenance. Jacob undertook the burden of support because of the promise of Cornelius to share in the cost and so far as the liability of the parties under this contract is concerned that share is one-half of the expense. It may be that if a proceeding had been instituted under the statute, a third son might have been compelled to contribute to his father’s support, but the burden which Jacob assumed and which Cornelius agreed to share did not arise under the poor law but was a voluntary' undertaking in which- they had a right to engage and which was creditable to their filial impulse. The failure to fix an amount to be paid by Cornelius does not affect the validity of tbe obligation. It is evident that it might have been in the contemplation of the parties that the sum would vary with the age and physical condition of the father. Medical services and nursing might be required at times and not at other times and the amount was not improperly left for determination according to the varying conditions. The pith of the contract is the agreement to pay and in the absence of a sum named the value of the thing rendered will be implied. There is no denial that support was furnished the father by the appellee up to the time of the death of Cornelius and the value of this service is shown by competent evidence. Having established, therefore, an express contract to pay for the services and produced evidence of the value thereof a case was presented entitling the appellee to a decree in his favor. The case is not one of a stale claim against a decedent’s estate or of a claim resting upon vague, parol evidence. The obligation was in writing and possessed the essential elements of a valid contract. The claim is not for the wages of domestic service as to which a presumption of payment arises, according to the custom of the country, and the numerous authorities cited upon that subject are not relevant. The appellee brought himself within the doctrine of Payne’s Estate, 204 Pa. 535, where a claim more than six years old was allowed. A careful examination of the evidence brings us to the conclusion that the action of the court should be sustained .

The decree is affirmed.


text:
    Kreiner v. Straubmüller, Appellant.

      Negligence — Sidewalk—Barrels on sidewalk — Infants.
    Those controlling property on, or immediately adjacent to, a public highway must have regard to the reckless and thoughtless tastes and traits of childhood. The owner* of premises are required in such cases to anticipate that children may use the highway, and in so doing be exposed to any unsafe object placed thereon.
    Where the owner of a brewery piles beer barrels on a sidewalk, and keeps them there without in any way being secured, and in such a way as to invite children to climb thereon, and a child five years of age is in consequence injured, he is liable for the injuries sustained.
    Argued Oct. 17, 1905.
    Appeal, No. 40, Oct. T., 1905, by defendant, from order of C. P. No. 2, Phila. Co., Sept. T., 1902, No. 3,723, dismissing exceptions to report of referee in case of George J. Kreiner, by bis next friend and mother, Josephine C. Kreiner, and Josephine C. Kreiner, in her own right, v. Joseph, Straubmiiller.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries tq a child five years old.
    Exceptions to report of Chester N. Farr, Esq., referee.
    From the report of the referee it appeared that George J. Kreiner, a child about five years old, was injured in June, 1902, while at play on a pyramidal pile of beer barrels placed by defendant on a sidewalk adjoining his brewery. It appeared that the defendant was in the habit of piling barrels at the point in question, and keeping them there.
    The referee found specially as follows :
    The referee finds further as a fact that the pile of barrels was of such a character that the defendant should have reasonably anticipated that children would climb upon them in their play ; and furthermore, that the manner of piling was such as to render it dangerous to children who would be tempted' by playful instincts to climb upon the pile. The referee is of the opinion that proof to the effect that the manner of piling the barrels was unsafe is not necessary. The manner was obviously unsafe if children might be expected to climb upon the pile, and in his opinion it is immaterial whether the barrels could have been piled in any safer manner or not, for even if this were the only manner in which they could have been piled, there is no evidence that there was the slightest necessity to pile them on the sidewalk. The referee accordingly finds that the act of the defendant in so piling the barrels was a negligent act and was the cause of the injury to the plaintiff, George J. Kreiner; that the plaintiff, George J. Kreiner, cannot be chargeable with contributory negligence by reason of his tender years.

      The referee assessed the damages at $1,500 in favor of the plaintiff.

      Errors assigned were in dismissing exceptions to the referee’s report.

      Frank P. Prichard, with him James Wilson Bayard, for appellant.
    — The true test, it is submitted, is not whether the object is permanent or temporary, but whether it is so placed either on or near the highway that children using the highway for play may by running or leaning against it or by incidentally jarring it either fall into it or cause it to fall upon them. This distinction will reconcile all the cases: Marsh v. Giles, 211 Pa. 17.
    The owner of property is bound to make it safe for ordinary users of the highway, and-such users include children playing upon it. Where, however, the property is safe as regards ordinary users, the owner is not bound to make it secure for extraordinary use either for adults or children: Rodgers v. Lees, 140 Pa. 475; Guilmartin v. Philadelphia, 201 Pa. 518.
    If a man piles barrels on the highway he is bound to pile them so that they will not topple over on children who run or push against them, but he is not bound to pile them so that they will bear the weight of a boy who climbs to the top.

      Howard A. Davis, with him John T. Murphy, for appellee.
    — It is well settled that people who live along a city street have the right to use the sidewalk and highway for the purposes of their business temporarily. They have no right to use it permanently or to obstruct it for an unreasonable length of time. If they do obstruct it for an unreasonable length of time they become trespassers ab initio: Commonwealth v. Passmore, 1 Sergeant & Rawle, 217; Palmer v. Silverthorn, 32 Pa. 65; Mallory v. Griffey, 85 Pa. 275; Vallo v. United States Express Company, 147 Pa. 404.
    It has been held in a number of cases in various states that children have the right to use the streets of a great city for play and it is the duty of those who use the streets for any purpose to so conduct themselves that children who play thereon may not be tempted into danger while following their natural instincts: Kunkel v. Chicago, 87 Ill. App. Ct. 325; Quincy Horse Railway, etc., Co. v. Gnuse, 38 Ill. App. Ct. 212; Gulline v. Lowell, 144 Mass. 491 (11 N. E. Repr. 723); Graham v. Boston, 156 Mass. 75 (30 N. E. Repr. 170); Earl v. Crouch, 10 N. Y. Supp. 882; Hyland v. Burns, 10 Appellate Div. Rep. 386 (41 N. Y. Supp. 873); Schilling v. Abernethy, 112 Pa. 437.
    March 12, 1906:
   Opinion by

Henderson, J.,

It is a well established rule that those • controlling property on, or immediately adjacent to, a public highway must have regard to the reckless and thoughtless tastes and traits of childhood. The owners of the premises are required in such cases to anticipate that children may use the highway, and in so doing be exposed to any unsafe object placed thereon. They are bound to know that young children are likely to be at play on the streets, and to make use of objects attractive for their exploits and games, and this responsibility has been held to attach in some cases where the offensive object was wholly upon the property of the defendant, and where the children injured were trespassers, as in Hydraulic Works Company v. Orr, 83 Pa. 332, and Duffy v. Sable Iron Works, 210 Pa. 326. “ Children, wherever they go, must be expected to act upon childish instincts and impulses ; others, who are chargeable with a duty of care and caution toward them, must calculate upon this and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken : ” Chief Justice Cooley, in Power v. Harlow, 57 Mich. 107 (23 N. W. Repr. 606). Circumstances may beget duties which would not ordinarily be implied, and when they are shown to exist the questions arising are questions of fact, not of law: Schilling v. Abernethy, 112 Pa. 437. The decision in Hydraulic Works Co. v. Orr, 83 Pa. 332, has been criticised, and the soundness of its reasoning is stoutly combated by Chief Justice Mitchell, in the dissenting opinion in Duffy v. Sable Iron Works, 210 Pa. 326, but solely on the ground that a landowner is not liable for an injury to a trespasser from an excavation or obstruction on his own land, unless it is so near the public highway that a traveler lawfully using the highway may accidentally or without intended trespass fall into it. All of the cases agree that where the object is upon the highway and is of such a character that it should have been reasonably anticipated that it would be used by children in the course of their play, and that owing to its position, form or condition it would be dangerous to them when so engaged, the owner would be guilty of negligence if he failed to guard against the contingency of accident. This principle is recognized in Rodgers v. Lees, 140 Pa. 475, and Guilmartin v. Philadelphia, 201 Pa. 518, upon which the appellant relies. In the former case the child who was killed was a trespasser, and engaged in an act which was obviously dangerous. The object to which he clung was moving at the time, and his act was one which ordinary prudence might not have foreseen. In the latter case the child was injured by a falling gate on which he had climbed. The city was not required to anticipate dangers resulting from the improper use of objects safe in themselves, and for the use for which they are designed. In the same case, however, it was said: “ If an object was in itself dangerous or might become dapgerous if a child chanced to set it in motion while playing with it, or by running against it, there was a duty on the city to take such precaution as was reasonable, under the circumstances, to prevent injury by it.” Marsh v. Giles, 211 Pa. 17, turned upon the point that the act of the defendant in placing the stone against the pole was not the proximate cause of the injury; that that was the immediate consequence of the intervening act of the plaintiff’s companion in making a use of the stone not likely to have been anticipated. The injury could as well have occurred if the plaintiff’s companion had used a billet of wood or a stone picked up from the ground. The question presented to the referee at the trial below was whether the action of the children in playing upon the pile of barrels was one of the things which might have been expected to occur, and against the disastrous result of which the defendant was bound to guard. This question was one of fact. The defendant was not authorized to use the sidewalk as a place for storage of barrels. They were not there temporarily in the course of transfer from the street to the brewery, or from the brewery to the street. The same barrels did not remain all the time, but the evidence tends to show that barrels of the same character were kept there much of the time in the prosecution of the defendant’s business. This use of the street being unlawful, he has not the excuse that he was in the exercise of his own right in so obstructing the highway. The plaintiff was scarcely more than five years of age. He had slipped away from the home of his aunt, who had temporary care of him, while she was engaged in the house and was injured within a very short time thereafter. The playful instincts of himself and his companions took them to the place, and it does not seem improbable that they should have done just what was done. The barrels were empty, were not in any way secured, and were so arranged in tiers as to invite the children to the enterprise in which they engaged. The referee found that the pile of barrels was of such a character that the defendant should have anticipated that children would climb upon them in their play, and that the manner of piling was such as to render it dangerous to children who would be tempted to play thereon. This finding is warranted by the evidence and is conclusive against the defendant. It cannot be declared as a matter of law that children of such tender age would not be tempted in their plays to climb to the top of the pile, nor is there anything in the facts to indicate that they must have seen that such action was manifestly dangerous. Some' situations might be obviously dangerous to persons of their years, as the track of a railroad when a train is at hand, or the middle of a highway when a rapidly moving team is closely approaching, or the ascending ball in Marsh v. Giles, but we have nothing of that kind here. .It was not unlawful for the children to play upon the street, and it cannot be said that they had no business there. The owner of the premises owed them the duty to provide against the consequences of their inexperience and youthful inclination to play upon his property placed on the sidewalk in a position which might attract them. The referee arrived at a satisfactory conclusion on the evidence presented, and the facts being established the law declares the liability.

The judgment is affirmed.


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    Paxson & Comfort Company v. Potter, Appellant.
    March 12, 1906:

      Landlord and tenant — Destruction of -premises — Fire—Abatement of rent— Lease — Covenants.
    The rule that the destruction of a building by fire does not absolve the lessees from liability for rent, does not apply to a case of a demise of an apartment in a building.
    In an action for the rent of one of the floors of a building, an affidavit of defense is sufficient which alleges the total destruction by fire of a portion of the building, a re-renting by the lessor of the portion of the demised premises not destroyed, an entry by the new tenants, and a failure by the lessor to furnish steam and elevator service in accordance with the covenants of the lease.
    Argued Oct. 19, 1905.
    Appeal, No. 13, Oct. T., 1905, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1902, No. 745, making absolute rule for judgment for want of a sufficient affidavit of defense in case of The Paxson & Comfort Company v. Joseph Potter.
    Before Rick, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit for rent.
    The opinion of the Superior Court states the facts.

      Error assigned was order for judgment.

      John Weaver, for appellant.
    — The law of Pennsylvania, as to leases of apartments in the upper stories of buildings, is the reverse of the law as to the lease of the land with the buildings thereon erected: Camp v. Casey, 7 Pa. C. C. Rep. 160.

      J. Hibbs Buckman, of Hopple & Buckman, for appellee.
    Court said, “ Where the contract has been substantially performed, the failure to perform comparatively unimportant items will not entirely defeat plaintiff’s recovery: ” Gallagher v. Sharpless, 134 Pa. 134; Prescott v. Otterstatter, 79 Pa. 462.
   Opinion by

Henderson, J.,

The lease under which the defendant held was for the fourth floor of the buildings, Nos. 529 and 531 Arch street, and 524, 526 and 528 Cherry street in the city of Philadelphia. The plaintiff’s action is for rent for one month, which became due February 26, 1902. It is alleged in the affidavit of defense that premises 526 and 528 Cherry street were totally destroyed by fire and 524 Cherry street was damaged by fire on December 27, 1901. It is also averred that the plaintiff leased so much of the demised premises as had not been destroyed to other tenants soon after the fire and that these tenants immediately took possession. It is further asserted that the defendant leased the property for the manufaetui’e of straw goods ; that the lessor covenanted to furnish the lessee with steam power and also live steam, as required for the business and for heating the demised premises, and to provide passenger and freight elevators for the use of the lessee without other charge than the rent and that the lessor, after the fire, neglected and refused to furnish steam to operate the machinery and live steam required in the defendant’s business and the use of elevators as provided for. There is no doubt that where there is a covenant to pay rent in a lease of land with a building erected thereon, the destruction of the building by fire does not absolve the lessee from liability for the rent. This rule has its foundation in the fact that' the tenant is still in possession of the soil on which the building was located and that something remains to which the lease attaches. He may use the land for some purposes and may reconstruct the building. But the rule is not applicable in the case of the demise of an apartment in a building. In such a lease the tenant does not acquire a right to the possession of the land. It is impossible that the occupants of different stories of the same building could each retain- possession of the soil under his apartment in the event of the destruction of the building. In such a tenancy there is no understanding, either by landlord or tenant, that an estate in the land upon which the building is erected is granted. By the destruction of the building the whole estate demised is extinguished. The thing demised is not a space in air but a portion of the building. When the building is destroyed, nothing remains which the tenant can enjoy or claim: Ainsworth v. Mt. Moriah Lodge, 172 Mass. 257 (52 N. E. Repr. 81); Jackson & Gross on Landlord and Tenant sec. 286; Graves v. Berdan, 26 N. Y. 498. The right to rent is founded on the presumption that the tenant can enjoy the property leased during the term and where this is made impossible by the destruction of the thing which was the subject of the lease, it is reasonable that an abatement of the rent should be made. A considerable part of the premises occupied by the defendant was as completely destroyed as if swallowed by the sea, and in the last case above cited the situation of a tenant of an apartment in a building destroyed by fire was considered analogous to that of a lessee whose land had been thus washed away. This rule is consonant with reason and we think applicable to the facts as set up by the affidavit of defense.

There is a further averment that the defendant was evicted by the lessors; that the property not destroyed was leased to another tenant who went into possession. We think the averment of eviction is sufficiently set forth, due regard being had to the evident meaning of the language used.

The covenant for the use of elevators and steam, as required in the plaintiff’s business, was a material part of the lease. The defendant alleged that the failure of the lessor to perform its covenant with respect thereto rendered the premises useless to him. We have then the averment of the destruction of a large part of the demised premises, a leasing by the plaintiff, after the fire, of that portion of the premises not destroyed to another tenant, who went into possession, and the refusal of the lessor to perform an important and material covenant of the lease. These averments are something more than the allegation of a failure with reference to comparatively unimportant items in the contract and entitle the defendant to a trial on the facts alleged.

The judgment is reversed and the record remitted for further proceedings.


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    Bergner & Engel Brewing Company, Appellant, v. Koenig.

      Trade-marks — Penalties—Constitutional law — Due process of law — Act of June 20, 1901, P. L. 582.
    The Act of June 20, 1901, P. L. 582, for the protection of trade-marks, which gives to any person, copartnership or corporation “aggrieved in the matter” the penalty provided by section four of the act, is not unconstitutional, as depriving the defendant of his property without due process of law. The act is to protect both the owner of the trade-mark and the public, and the legislature has the right not only to enforce the penalty, but also to direct to whom it shall be paid.
    Argued Oct. 20, 1905.
    Appeal, No. 111, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 2, Pbila. Co., Dec. T., 1903, No. 4,288, for defendant on demurrer in case of Tbe Bergner and Engel Brewing Company v. Jacob Koenig.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit for penalty under tbe trade-mark Act of J une 20, 1901, P. L. 582.
    Demurrer to statement.
    Tbe opinion of tbe Superior Court states tbe case.

      Error assigned was tbe judgment for tbe defendant on tbe demurrer.

      John Dolman, for appellant.
    — There are many precedents for penal statutes in which tbe fine is given to the party aggrieved, to tbe informer, to a beneficial or charitable organization or appropriated by tbe legislature to other purposes, and they have uniformly been sustained, not only in this state but in other states in England: Powell v. Com., 114 Pa. 265; Donahue v. Dougherty, 5 Rawle, 124; Megargell v. Hazleton Coal Co., 8 W. & S. 342; Evans v. Harney, 17 Pa. 460; Monongahela Nat. Bank v. Overholt, 96 Pa. 327; Central R. R. Co. v. Green, 86 Pa. 427; Untermeyer v. Freund, 58 Fed. Repr. 205; Smith v. Stewart, 55 Fed. Repr. 481; Hill v. Williams, 14 S. & R. 287; Miller v. Lockwood, 17 Pa. 248; Collins v. Relief Society, 73 Pa. 194; Porter v. Dawson Bridge Co., 157 Pa. 367; Rockwell v. Nearing, 35 N. Y. 302; Cigar Makers’ International Union v. Goldberg, 61 Atl. Repr. 457; Missouri Pacific Ry. Co. v. Humes, 115 U. S. 512 (6 Sup. Ct. Repr. 110); Thompson v. Winchester, 36 Mass. 214; Schnable v. Koehler, 28 Pa. 181; Hutchinson v. Schimmelfeder, 40 Pa. 396; Whittemore v. Cutter, 1 Gallison, 429.
    March 12, 1906:

      Henry J. Scott, for appellee.
    — The act is unconstitutional: Hendler v. Lehigh Valley R. R. Co., 209 Pa. 263; Coffey v. Wilson, 65 Iowa, 270 (21 N. W. Repr. 602); Enfield v. Blyler, 67 Iowa, 295 (25 N. W. Repr. 251).
   Opinion by

Henderson, J.,

By demurring to the declaration the defendant admits the material averments of fact therein contained. It is conceded, therefore, that the plaintiff was the owner of a trademark duly registered in the United States patent office and in the office of the secretary of the commonwealth and used in its business and that the defendant wrongfully and injuriously adopted an imitation thereof which he falsely represented to be the trademark of the plaintiff. The action is for the penalty provided by the Act of June 20, 1901, P. L. 582. It is not denied that the legislature has power to legislate upon the subject of trademarks ; to provide for their registration and to prescribe penalties for the fraudulent use of them. The learned trial judge was of the opinion, however, that that portion of the act of 1901 which gives to any person, copartnership or corporation “ aggrieved in the matter ” the penalty prescribed by section 4 is unconstitutional in that it deprives the defendant of his property without due process of law. In reaching this conclusion adequate account is not taken of the object of the enactment. The proprietor of the trade-mark not only has what has been frequently called a property interest therein, but there is also a public interest out of which legislative control arises. One of the reasons for the protection of trade-marks exists in the policy of encouraging trade and manufacture and stimulating the production of commodities which are acceptable in the market. Another is the prevention of fraud upon consumers. It has long been recognized as a police power of the state to protect its citizens from imposition in regard to the kind and quality of goods they purchase, and dealers in merchandise have a right to adopt a distinguishing mark by which their commodities may be known. Legislation of this character has been enacted by the United States and by substantially all of the states and in many instances penalties have been prescribed. Nothing but a clear violation of the constitution will justify a court in pronouncing an act of the legislature unconstitutional. What then is the defect in the legislation referred to ? Not in the imposition of a penalty; this the legislature clearly had power to do. We need not refer to the numerous statutes held to be constitutional in which similar penal provisions have been incorporated. The invalidity is said to exist in the designation of the parties authorized to sue for the penalty. Such designation is not a part of the penalty, however, but an appropriation of it when collected. The proceeding is not an action for damages. The object of the statute is to punish one who unlawfully appropriates the trade-mark of another. The owner may be indirectly interested, but the penalty inflicted is for the wrong done to the public. Numerous penal statutes are in force in which the penalty is recoverable in whole or in part by the informer or the “ party aggrieved.” The act of 1729 prohibiting the marriage of infants without the consent of their parents; the act of March 28, 1814, providing a penalty for taking illegal fees ; the act of March 22, 1867, prohibiting the exclusion from railroad cars of persons on account of color or race; the act of March 23, 1868, requiring railroad companies in the county of Erie to erect and maintain fences on each side of their tracks; the Act of April 29, 1874, sec. 31 P. L. 73, prohibiting the collection of a higher rate of toll than that prescribed and the act of May 21, 1885, prohibiting the sale of oleomargarine, are examples of this class of legislation. Many of these statutes have come under review and have been sustained by the Supreme Court. In Collins v. Relief Society, 73 Pa. 194, an action to recover a penalty under the Act of March 24, 1851, P. L. 229, was sustained where the whole penalty was payable under the statute to the plaintiff. In Penna. R. R. Co. v. Riblet, 66 Pa. 164, the statute directed that the penalty imposed upon railroad companies for failure to maintain fences as provided by the act should be payable one-half to the informer and the other half to the school districts of the township. The plaintiff was the owner of the land along which the fence had been erected and his right to maintain the action was sustained irrespective of his personal damage. In Central R. R. Co. v. Green, 86 Pa. 427, it was held that an action could be maintained for the penalty under the act of March 22, 1867, for excluding colored persons from a car and in Hill v. Williams, 14 S. & R. 287, the act of February 14, 1729, was considered and sustained. In Porter v. Dawson Bridge Co., 157 Pa. 367, the person who had paid an overcharge of toll was allowed to recover the penalty prescribed by the act of 1874. In only one of these cases was the power of the legislature to declare who should have the penalty imposed questioned. In that case, Collins v. Relief Society, 73 Pa. 194, the court said : “To say that the legislature could

not appropriate it (the penalty) as they pleased to the person grieved, the pilot whose services were refused, to an informer, or to a charity, would be to contradict the uniform legislation of the state. The statute book is filled with such grants of penalties, one great object of it undoubtedly being to secure better the enforcement of the law by making it the interest of private persons or corporations to prosecute offenders.” To the same effect is Missouri Pacific Ry. Co. v. Humes, 115 U. S. 512 (6 Sup. Ct. Repr. 110), where it was said: “The power of the state to impose fines and penalties for a violation of its statutory requirements is coeval with government; and the mode in which they should be enforced whether at the suit of a private party or at the suit of the public and what disposition shall be made of the amounts collected are merely matters of legislative discretion.” Men are often punished by statutes for lawless acts by means of civil actions where the penalty imposed is appropriated to the party injured. The validity of the statute is not affected by the fact that there may be several parties aggrieved. It was so in Central R. R. Co. v. Green, 86 Pa. 427, and Hill v. Williams, 14 S. & R. 287, where it was held .that the party who first sues is entitled to the penalty. The assumption that no injury to the commonwealth arose is not warranted by the pleadings. The legislature assumed by its enactment that injury would arise from the fraudulent use of a trade-mark and, therefore, prohibited it. The pleadings establish such fraudulent use and a cause of action is shown. That the plaintiff was a party aggrieved sufficiently appears. It owned the trade-mark and was entitled to any advantages arising from the business which it had established and the reputation which the trade-mark was intended to secure. The loss of profits, resulting from diminished sales on account of the deception practiced by the defendant, would be a substantial injury and while this might be difficult of proof the plaintiff would be entitled to nominal damages, at least, in an action for an infringement. The plaintiff is authorized to maintain the action and we have no doubt that it was within the power of the legislature to direct the appropriation of the penalty prescribed by the statute.

The judgment is reversed; the demurrer overruled and judgment is now entered for the plaintiff.


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    Pollock v. Talcott, Appellant.

      SePoff — Breach of an agreement to lease — Contract—Evidence.
    In an action of assumpsit where the defendant sets up a counterclaim for damages arising from a breach of an agreement for a lease, a lease between the owner .and the defendant made after the alleged agreement with the plaintiff, is not admissible if there is no offer to follow the lease by evidence showing the actual damage resulting to defendant by reason of the default of the plaintiff to sublet from defendant. In such a case a witness as to the value of the lease will not be permitted to testify where he is not shown to have knowledge of the value of leaseholds in t.he vicinity and is not qualified as an expert to express an opinion.
    Argued Oct. 20, 1905.
    Appeal, No. 194, Oct. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1903, on verdict for plaintiff in case of James Pollock, Trustee of the Estate of Dingley Manufacturing Company, Bankrupt, v. James Talcott.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit for money had and received. Before Audenried, J.

      The facts are stated in the opinion of the Superior Court.
    At the trial the court, under objection and exception, refused to admit in evidence a lease from Elizabeth Aldrich to James Talcott from February 1,1901, to February 1,1902. [1]
    S. S. Burr was asked this question :
    “ Q. You have said'that no use was made by James Talcott of this one-third of the premises that was to have been occupied by the Dingley company. Will you tell us whether, under all'the circumstances, Mr. Talcott could have disposed of that one-third of the premises ? Under all the circumstances in this case could he have made use, with some other party, of that one-third of the premises ? ”
    Objected to. Objection sustained. Exception noted for defendant by direction of the court. [2]
    Defendant presented this point:
    8. If you find that the plaintiff is bound by the agreement made with the defendant, and that defendant complied with his part of the agreement, then defendant is entitled to retain out of the money otherwise owing to plaintiff the amount of damages he has suffered by failure of the Dingley Manufacturing Company to comply with its part of the agreement. Answer : The defendant’s points are refused. [8]
    The court charged the jury as follows :
    The defense of set-off has not been established. It is admitted by the defendant that he has moneys in his hands collected for the account of the plaintiff, and as he has failed to make out the set-off against the plaintiff’s claim for these collections, your verdict must be in favor of the plaintiff for the full amount of the claim. [4]
    Verdict and judgment for plaintiff for $893.61. Defendant appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions ; (3, 4) above instructions, quoting them.

      Lester B. Johnson, with him John F. Keator, for appellant.—
    Defense offered is a proper subject of set-off.
    The ease is exactly analogous to Assigned Estate of Reading Iron Works, Sweatman’s Appeal, 150 Pa. 369.

      March 12, 1906:

      Clinton 0. Mayer, with him Joseph L. Greenwald, for appellee.
   Opinion by

Henderson, J.,

We do not deem it necessary to consider the question whether a set-off of the claim for damage resulting from a breach of contract by the bankrupt would be allowable in this action. The record presented does not show proof or an offer of proof of facts entitling the defendant to the set-off. It is not claimed that any lease was entered into between the defendant and the Dingley Manufacturing Company, or that the latter went into possession of the premises concerning which the alleged contract was made. The testimony of the plaintiff’s witness, Burr,"shows that the parties contemplated that a lease should be executed after the defendant acquired his term from the owner of the premises and this was not done because of the insolvency proceeding. The defendant did not have anything to lease at the time the arrangement was made with Burr. His counterclaim is, therefore, for damage arising from a breach of an agreement for a lease, and we do not find evidence or an offer of evidence to show what this damage was. It was not proposed to follow the offer of the lease by evidence showing the actual damage resulting to the defendant by reason of that default.

The offer of evidence in the second assignment was properly rejected by the court. The witness was not shown to have knowledge of the value of leaseholds in the vicinity of the demised premises and does not appear to have been qualified as an expert to express an opinion. The inquiry whether the defendant, “ under all the circumstances in the case, could have made use, with some other party,” of the one-third of the premises intended for the Dingley Manufacturing Company, is purely speculative and a matter of opinion about which the witness does not appear to have been qualified to testify. Whether the defendant attempted to procure or could have procured another tenant was not shown. The rejection of the lease did not prejudice the defendant, therefore, for with the lease in, there was nothing to go to the jury on the question of damage.

The affirmation of the defendant’s eighth point (third assignment) would not have aided the appellant. There was no evidence to submit to the jury as to the amount of damage he had suffered by the failure of the Dingley company to comply with its part of the agreement. The charge of the court is not objectionable in view of the evidence introduced or offered. The set-off was not established even if it were admissible as against the bankrupt estate.

The judgment is, therefore, affirmed.